The Right Coast
March 02, 2005
Why is it that only the chattering classes need "breathing room"?
By Gail Heriot
Tort law can teach you a lot about what a society values. I am particularly fond of comparisons between 19th century America and modern America, which I believe can be distinguished this way: the 19th century loved doers and modern America loves talkers.
Let me start with the 19th century: It used to be fashionable for scholars to describe tort law of that period in terms of class warfare. Nineteenth century judges were said to favor capitalists–particularly railroads and manufacturers–over ordinary folks. Some scholars made it sound like this alleged bias was conscious and even corrupt.
It comes a lot closer to the truth to say that 19th century judges were pro-action. They liked people who did things–whether it was build a railroad, till the land, or fix the plumbing. Call the favored class doers, not capitalists. The negligence standard, which had become the prevailing rule by mid-century, is an example of doer protection. Sure, if a doer was acting negligently in causing a harm, he should be made to pay damages. But if the accident was not due to negligence, why punish the doer? At least he was trying to do something useful and not just sitting by the sidelines–or so the 19th century argument might run.
The textbook case used to demonstrate the establishment of a broad negligence standard in 19th century tort law is Brown v. Kendall. And it’s is an excellent example of what I’m talking about. The defendant in that case was not a railroad or a manufacturer. He was just a guy who was trying to separate a pair of fighting dogs. In doing so, he accidently hit the plaintiff with a stick, who was apparently standing there like a dummy. The court held the defendant could be held liable only if he failed to act with reasonable care.
Contrast this with much of tort law in the 20th century, a period in which strict liability standards were on the rise. The essence of a strict liability standard is that action is not privileged over non-action. Act at your peril, for if you harm someone in the course of your action, you must pay damages, no matter how careful you were. Under this view, undertaking the risk that something will go wrong is part of what you do when you act.
Furthermore, under the 20th century view, strict liability is especially appropriate if the actor is acting for profit. One can imagine a legal regime under which actors who are "goofing off" are held to a higher standard than those who are trying to perform a valuable service (and hence are charging for it). But the law is otherwise. We apply strict liability to sellers who are in the business of selling the product that caused the injury. We go more lightly on the dilettante.
I’ll confess that I don’t feel strongly about the strict liability vs. negligence issue. I can see arguments both ways. What I find interesting is the stark contrast between the way the two eras treat doers and the way they treat talkers. Nineteenth century judges had no special place in their hearts for talkers. Defamation, for example, was a strict liability tort, when just about every other tort required proof of the defendant’s negligence. If you opened your mouth and defamed someone, these judges were not in the least interested to know that you honestly and reasonably believed that what you said was true. In their view, you speak at your peril. If you don’t want to run the risk of liability, keep your mouth shut (or at least avoid saying defamatory things). Running one’s mouth off was evidently not in the same category as building railroads, tilling the land or even separating angry dogs.
Modern judges, on the other hand, evidently regard talk as the highest form of human activity. It needed "breathing room," they say. They held in New York Times v. Sullivan, for example, that in order for a newspaper to be liable for defaming a public figure it must have acted with "malice" (i.e. it must know of the statement’s falsity or act in reckless disregard of its truth or falsity). In particular, courts bend over backwards to protect newspapers, magazines and book authors–professional chatterers. Dilettantes received slightly less protection, instead of slightly more.
It’s certainly not obvious to me that all this talk about the need for First Amendment "breathing room" is false. What I don’t understand is why it doesn’t seem to occur to courts that other equally or more valuable human activities don’t also need "breathing room" in the form of legal standards that give them the benefit of a presumption in the actor's favor. Chattering is fine. I do it for a living myself. But it seems odd to elevate it over activities that receive no such presumption like the manufacture of life-saving pharmaceutical products. Don't they need "breathing room" too?