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Rethinking Free Speech Liability

Guest Scholars:
Daniel J. Solove
Professor of Law
George Washington University Law School

Neil M. Richards
Professor of Law
Washington University School of Law

One of the most important and unresolved riddles of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. Since the landmark case of New York Times v. Sullivan, the First Amendment applies to tort liability for various forms of speech, including defamation, intentional infliction of emotional distress, and invasion of privacy. Hardly anybody contests this rule as a normative matter. In other contexts, however, the First Amendment is almost totally inapplicable to liability for speech. For example, since Cohen v. Cowles, there is no First Amendment liability for speech restricted by generally applicable rules such as promissory estoppel and contract. These two strands of First Amendment jurisprudence have existed for decades without question. But when examined more closely, these two strands are in severe conflict with each other. The law imposes numerous duties of confidentiality. Professionals such as doctors, lawyers, and bankers have duties to maintain the confidentiality of their patients' or clients' information. Employees frequently agree to keep their company's data confidential. Various statutes require that the holders of personal information maintain confidentiality. People routinely make agreements not to disclose another's personal information. Does the First Amendment apply to these duties of confidentiality? Should it? The law currently supplies two directly opposite conclusions. In this article, Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve the difficult free speech-confidentiality riddle. They propose a way to answer this intractable conundrum.

Ed Baker
Professor of Law and Communications
University of Pennsylvania

Jack Balkin
Professor of Law
Director, Information Society Project
Yale Law School

Vincent Blasi
Professor of Civil Liberties
Columbia Law School

Ira Bloom
Lehman College of CUNY

Jamela Debelak
CLIP Leitner Fellow
Fordham Law School

Abner Greene
Professor of Law
Fordham Law School

Sonia Katyal
Associate Professor of Law
Fordham Law School

Jason Mazzone
Associate Professor of Law
Brooklyn Law School

Phil Napoli
Associate Professor of Communications
Director, McGannon Communications Center
Fordham University

Mark Patterson
Professor of Law
Fordham Law School

Joel R. Reidenberg
Associate Chief Academic Officer & Associate Vice President for Academic Affairs
Professor of Law & Director of CLIP
Fordham University

Susan Scafidi
Visiting Professor of Law
Fordham Law School

Kathy Strandburg
Visiting Professor, Fordham Law School
Associate Professor, DePaul Law School

Tim Zick
Professor of Law
William & Mary Law School