The Uneasy and Often Unhelpful Interaction of Tort Law and Constitutional Law in First Amendment Litigation

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being of no public interest. At the other extreme is the model that some expression which, though lawfully obtained, reveals to a wider audience intimate private information about another should be subject to sanction, as should verbal abuse of a private figure even if there is no implicit threat of physical violence. Some provisions of the American Restatement adopted with scant attention to constitutional developments have taken, and to some extent continue to take, that position. Finally, there is an intermediate model—now gaining wide-spread support in Europe and to some extent in America, even among some members of the United States Supreme Court—that expression which does not concern matters of “public concern” can be subject to public sanction even if it has been lawfully acquired and involves no threats of physical aggression against others. This Article sets out how this confusing impasse has come about and the dangers that this lack of clarity present for freedom of expression