Where’s the State Action in Tort Awards Based on Speech?

Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really “state action” that’s governed by the First Amendment? Why isn’t it like a private employer firing a private employee, or a private property owner ejecting a demonstrator from his private property, neither of which poses a First Amendment problem? I’ve most recently heard this question about the Snyder v. Phelps intentional infliction of emotional distress jury verdict, but the same could be asked about speech-based verdicts for libel, disclosure of private facts, false light invasion of privacy, unauthorized use of another’s name or likeness, interference with business relations, and the like.

The Court’s answer is well-settled and, in my view, quite correct. Here’s a relevant passage from New York Times v. Sullivan, the leading libel case. (The plaintiff there was a government official, but he was suing the same way any citizen could sue, and of course the First Amendment rules related to libel law don’t just apply to government officials.)

We may dispose at the outset of … the proposition relied on by the State Supreme Court — that “The Fourteenth Amendment is directed against State action and not private action.” That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.

That, I think, is exactly right. When a government actor (the court system) coercively transfers money from A to B because of A’s speech, that is a restriction on speech. There’s little difference in principle or in practice between the government’s imposing a fine on, say, racist speech and the government’s allowing people who are offended by racist speech to sue and collect damages (whether under a legislatively created statute or a judge-made common-law tort rule). In both situations, there is a government-created rule of law. In both situations, a government actor (a judge or jury) applies the rule of law based on the content of the person’s speech. Both are therefore government-imposed content-based speech restrictions, and should be judged as such.

When a private employer stops paying a private employee because of the employee’s speech, that does not involve government action. When a private property owner ejects a demonstrator because of the demonstrator’s speech, and enforces this ejection through the threat of a trespass lawsuit or a trespass prosecution, then there would be government action in that lawsuit or prosecution — the protection of real property rights does involve government action. But the government action would not be based on a governmental judgment about the content of the speech, only the government’s deciding whether the defendant had stayed on another’s property against the property owner’s wishes. That’s a big part of why trespass law is constitutional even applied to speakers.

Finally, when a person sues another for the breach of a speech-restrictive contract, there is also government action, but constitutionally permissible government action, because government actors do not themselves “define[] the content of publications that would trigger liability”; instead, contract law “simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions which may be placed on the publication of truthful information are self-imposed.”

So whenever a court acts coercively — whether to put someone in jail, or to take his money — there’s government action. And when the government action involves restricting speech because of its content (or the supposed harms that flow from its content), without the speaker’s prior contractual permission, that restriction triggers the usual First Amendment scrutiny.

Incidentally, this seems to me to be consistent with the original understanding of the First Amendment. Free speech and free press objections to civil libel and slander lawsuits were often raised in the early decades of the Republic, and while they were often rejected on substantive grounds — the courts took the view that defamatory speech was constitutionally unprotected, whether against civil liability or criminal punishment — they were not rejected on “lack of government action” grounds. Sullivan‘s insight that even civil litigation still involves government power and is thus subject to government constraints seems to have been broadly accepted in the late 1700s and early 1800s. See, e.g., Root v. King, 7 Cow. 613 (N.Y. Supp. 1827); Mayrant v. Richardson, 10 S.C.L. 347 (S.C. Const. Ct. App. 1818); Reid v. Delorme, 4 S.C.L. 76 (S.C. Const. Ct. App. 1806); Harris v. Huntington, 2 Tyl. 129 (Vt. 1802); Am. Mercury, Dec. 26, 1799, at 2 (charge to the jury in Rush v. Cobbett). And in Mayrant, Reid, and Harris (the latter two of which were cases involving the right to petition the government, rather than just the freedom of speech or press more generally), the plaintiff actually prevailed, based partly on constitutional principles.

So the Framers recognized that courts, including courts applying court-made common law rules, were agents of the government and generally subject to constitutional constraints. The early decisions were all state decisions applying state constitutions; but my readings suggest to me that — despite the use of the word “Congress” in the First Amendment — the scope of state freedom of speech/press/petition guarantees was seen as largely interchangeable with each other, and with the First Amendment. (Certainly early federal court cases, even ones applying judge-made speech restrictions and not statutorily enacted ones, treated the First Amendment as at least potentially applicable.) So my sense is that the original understanding of the First Amendment, and also the traditional one in the centuries since the Framing, is that it does apply to civil litigation, though the exact scope of the constitutional rules has of course changed over time.


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