Negligent Speech Torts

Abstract

Recent research on the effects of violent media on children has elevated longstanding controversy over civil liability for speech to a new level. Negligent Speech Torts reviews and challenges prevailing negligent speech jurisprudence and proposes wholesale reform to the rules governing civil liability for unreasonably dangerous speech. The prevailing Brandenburg incitement test is inapposite as applied to modern dangerous speech cases and should be replaced by a “constitutionalized” negligence paradigm to reconcile First Amendment and tort policies. The Supreme Court has “constitutionalized” various other speech torts – such as defamation, privacy, and emotional torts – by raising the prima facie case evidentiary requirements to meet First Amendment scrutiny. The same evidentiary tailoring approach should be used to constitutionalize the tort of negligence, to allow limited liability where fault and causation can be established to a level of First Amendment satisfaction. An analytical paradigm derived from the Supreme Court’s speech tort precedent is proposed to replace existing negligent speech liability rules, and the proposed paradigm is illustrated by reference to the contemporary problem of violent video games and children.