Quinshawna Landon (University of Miami – University of Miami Law Review) has published, “The First Amendment and Speech-Based Torts: Recalibrating the Balance”, University of Miami Law Review, forthcoming. The abstract reads:
The Supreme Court was correct in employing the public concern standard in its recent decision of Snyder v. Phelps. However, the Court was incorrect in limiting its decision to the facts of the case. By doing this, the Court allowed the public figure/private figure distinction to remain in tact. Thus, the protections of free speech are contingent upon the status of a person rather than on the function of the speech, which is the true goal of the First Amendment.
This Article contends that the public figure/private figure distinction should be abandoned. Several of the rationales underpinning the doctrine are no longer viable today. In addition, this article asserts that the public figure doctrine should be supplanted by the public concern standard. The public concern test will implicate the First Amendment and apply the actual malice standard to speech concerning all activities that relate to the function of government such as issues of social, educational, and political importance. Categorizing speech by a person’s status does not calibrate the appropriate balance between tort liability and the First Amendment. It leaves some individual’s vulnerable to the harms of speech-based torts while leaving some categories of speech unprotected. By focusing on the function of the speech rather than the status of the speaker, the public concern standard will more adequately protect free speech and better effectuate the purposes of the First Amendment.
Part I will discuss the competing goals of the First Amendment and speech-based torts. While speech-based torts are designed to protect an individual from harm such as injury to one’s reputation, emotional well-being, or invasion to one’s privacy, the First Amendment is intended to protect the free flow of ideas in society, the ability to access information that will allow society to govern itself, and the ability to express oneself freely. Part I will examine the purposes of each and determine why it is important to balance the interests of both concepts. Part II delineates an historical perspective of the public figure/private figure distinction and analyzes the evolution and purpose of the doctrine in First Amendment jurisprudence. Part III argues that the public concern standard is the best method of protecting free speech and preserving First Amendment principles. It contends that the public figure/private figure distinction should be abandoned because the rationales underpinning the standard – that private figures deserve greater protection because they enjoy less access to the channels of effective communication and that they have not thrust themselves into the limelight in order to influence public debate – are no longer viable today.
Finally, Part IV presents three case studies: a public official wrongfully accused by a blogger of allowing her racial bias to influence her duties as a government agent; a published article falsely alleging that a public figure cheats on his wife; and the Snyder case. It finds that in all examples the public concern standard produces a better and more equitable outcome than the current controlling standard.
The article is available for download at SSRN here.