The Influence of Freedom of Speech on Tort Law: Where to Draw the Line?

Abstract

The Constitutions of both Canada and the United States protect the freedom speech. Similarly, the common law in both countries allows for the recovery of damages, under certain conditions, for the utterance of harmful speech. The judiciary is tasked with the difficult assignment of determining the appropriate line to draw between competing interests and rights; put differently, the courts are responsible for determining what speech is protected and what speech is not. This task should be based on an honest assessment of underlying societal values in order to place the appropriate emphasis on the various competing rights.This paper will briefly examine theoretical rationales behind rights in general, along with an overview of the purposes of protecting free speech. While focusing on the development of the common law in Canada, a comparative analysis with the United States will be undertaken in order to shed light on alternative jurisprudential directions. The state action doctrine will be discussed in both the American and Canadian contexts, followed by an examination of the constitutional constraints placed on the tort of defamation in the United States and Canada. Finally, the evolving limitations for recovery of damages in actions of intentional infliction of emotional distress will be examined in the American context in order to reveal the possible consequences of a more absolutist position on the freedom of speech.