The Deep Roots of Constitutional Constraints on Speech-Based Civil Liability

I just circulated to the journals this 4-page law review article, and I thought I’d also quote it in this post; to see the footnotes, please see the PDF.

Does the First Amendment limit common-law tort liability? New York Times Co. v. Sullivan said yes, but some argue this is a modern innovation. The Court’s turn to original meaning, including in free speech cases, may make the issue significant again.

This short article argues that constitutional constraints on speech-based civil liability have deep roots, going back to the Framing era. That aspect of the New York Times v. Sullivan holding is entirely consistent with original meaning. The Framers likely did view the proper scope of libel liability more broadly than recent First Amendment precedents allow. But this was because of a substantive judgment about which speech restrictions (civil or criminal) should be permitted — not because of a judgment that civil liability simply didn’t constitute state action, or that tort law was categorically immune from constitutional scrutiny.

And it shouldn’t be surprising that civil liability was seen as constrained by free speech principles, because it’s clear that the imposition of damages liability was seen as government action of the sort that required some constitutional constraints. That much is evident from the Seventh Amendment, and from the many comparable state constitutional provisions assuring a jury trial in civil cases. Purely private behavior was indeed not covered by state and federal Bills of Rights. But the adjudication of private disputes was done by government-run courts, and was subject to constitutional rules such as the jury trial mandate. And, as the evidence below will show, it was also subject to constitutional rules related to freedom of expression.

Late 1700s and Early 1800s Cases and Commentators

In fact, tort liability was at issue in the very earliest cases that protected speakers based on state constitutional analogs to the First Amendment: In 1802 and 1806, the Vermont Supreme Court and the South Carolina Constitutional Court of Appeals reversed libel verdicts for the plaintiffs, holding that the state equivalents of the Petition Clause barred recovery for alleged libels in petitions to the legislature. In 1809, the New York Supreme Court reversed a libel verdict based on such a petition, and one of the judges, DeWitt Clinton, likewise rested his opinion on the state constitutional provision. And in 1818, the South Carolina Constitutional Court of Appeals applied the same reasoning as to the freedom of speech and press more broadly.

In other early cases, courts acknowledged that the freedom of speech and press may apply to civil lawsuits as well as to criminal prosecutions, but reasoned that libelous speech was a constitutionally unprotected abuse of the freedom and could thus lead to civil liability as well as to criminal punishment. We see this in cases from the Pennsylvania Supreme Court in 1799 and 1803, as well as from a Michigan territorial court in 1829. And in 1808, the Massachusetts Supreme Judicial Court likewise held that state legislators’ freedom of speech and debate could bar civil liability for slanderous statements made “while discharging the duties of [the legislator’s] office,” though the court held that the particular speech in that case was outside the legislators’ duties and thus potentially actionable.

Early commentators, including St. George Tucker, Chancellor Kent, and Justice Joseph Story, likewise treated civil liability the same as criminal punishment when it came to constitutional speech and press protections. The commentators concluded that libel was generally constitutionally unprotected, both against civil liability and criminal punishment. But their conclusion rested on a judgment that defamation didn’t merit constitutional protection. Their reasoning did not rest on any view that damages liability didn’t involve state action and was thus immune from constitutional constraints.

Some of the cases I cite were brought by government officials; but they were suing as citizens, not as officials, defending their private rights. And other cases were not brought by government officials. The premise of the court decisions must be that judicial action imposing liability for speech is covered by constitutional free speech provisions, regardless of whether the plaintiff himself was acting for the state.

Some early state constitutional free press clauses did specifically mention “criminal prosecutions,” generally saying something like,

The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.

But while the second sentence applies only to “prosecutions” and “indictments,” there is no such limitation in the first sentence. And the reference to criminal cases in the second sentence likely stems from the fact that the protections listed in the second sentence were only needed in criminal cases, and would have been superfluous in civil cases. In criminal cases, English common-law judges had famously not recognized the defense of truth, and didn’t let juries decide whether the defendant’s words were indeed libelous. But in civil cases, the defense of truth was already well established, as was the jury’s role as judges of law as well as fact.

The First Amendment, and the Federalization of Free Speech Protections

So far I’ve discussed state constitutional provisions, but this is because tort liability in the early Republic was almost entirely a matter of state law. Libel lawsuits in federal court generally arose because of diversity of citizenship, and were therefore likewise governed by state constitutions. Thus, though the First Amendment literally limits itself only to “law” made by “Congress,” and not the common-law-based decisions of federal courts, this limitation was almost entirely irrelevant to civil liability for speech.

[Footnote: Even in the territories, where federal law applied, courts apparently treated the First Amendment as governing the common law. The cases I have seen on this have involved criminal law and injunctions; but nothing suggests that the First Amendment’s reference to “Congress” would have barred consideration of the First Amendment as to common-law damages liability, given that it didn’t bar consideration of the First Amendment as to other common-law principles.

The likeliest explanation for reading the freedom of speech and of the press as applying to judges as well as to Congress, I think, is that the Bill of Rights was understood as embodying basic legal principles. Congress was bound by the freedom of speech and of the press because of the text of the First Amendment. But courts were likewise bound by the freedom of speech and of the press, because those were seen as being part of American common law. Further evidence for this is provided by Dexter v. Spear, 7 F. Cas. 624, 624-25 (C.C.R.I. 1825), in which Justice Story (riding circuit) discussed “[t]he liberty of speech and the liberty of the press” in a diversity case, though concluding — in keeping with Justice Story’s views noted in his Commentaries — that defamation is not protected by that liberty. Rhode Island lacked a state Constitution and a corresponding Bill of Rights until 1842; Justice Story must have been treating the common law of tort as being limited by the common law of freedom of speech and of the press.]

And to the extent that the First Amendment now applies to state common law torts, as well as to other state action, it applies through the Fourteenth Amendment. The Fourteenth Amendment generally covers all action by a “State,” and isn’t limited to state legislatures. Moreover, by the time the Fourteenth Amendment was enacted, the freedom of speech and press had been understood for decades as applying to civil liability as well as criminal punishment.


“It matters not,” New York Times v. Sullivan said, “that [a speech restriction] has been applied in a civil action and that it is common law only, though supplemented by statute.” New York Times v. Sullivan didn’t offer any late 1700s or early 1800s support for this proposition, though elsewhere the opinion was willing to make claims about the history of that era. Nonetheless, such support is available: Many cases and commentators from that time took for granted that civil liability was subject to constitutional constraints, and I know of no sources that took the contrary view.

UPDATE: I originally wrote, in paragraph 3, “or that tort law was categorically immune from First Amendment scrutiny”; that was a modern slip-up, using the First Amendment to refer to the range of constitutional protections (chiefly state constitutional protections) for expression. As the last part of the paper before the Conclusion makes clear, late 18th century and 19th century constitutional protections for expression came from state constitutions, but were then federalized through the “incorporation” process. I therefore corrected “First Amendment scrutiny” to “constitutional scrutiny” (or I could have said, more precisely but clunkily, “constitutional free speech/press/petition scrutiny”).

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