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69 Brook. L. Rev. 755 (2003-2004)
First Amendment Limitations on Tort Law

handle is hein.journals/brklr69 and id is 765 raw text is: ARTICLES First Amendment Limitations on Tort Law* David A. Anderson' I. INTRODUCTION Most First Amendment law has developed in response to restraints on speech imposed by statute, local ordinance, or agency regulation. Typically, the restriction arises from the words of a statute or rule, and therefore is relatively fixed, specific, and readily identifiable. It usually issues from the executive or the legislature - government actors who historically have been the villains in the great dramas that produced our free speech traditions. Because some entity of the state is normally a party to the litigation in which the restriction is challenged, the state is present to offer its interpretation of the restriction, explain its objectives, and answer objections to the means it has chosen. When the challenged restraint is a tort judgment, though, the situation is rather different. The threat exists not within the corners of a document, but in the operation of the common law, the articulation of which is scattered, incomplete, possibly changing, and sometimes contradictory. Often the content and effect of the common law is itself being contested in the very proceeding in which its constitutionality is to be decided. The © 2004 David A. Anderson. All Rights Reserved. Fred and Emily Marshall Wulff Centennial Chair in Law, University of Texas. The author thanks April Lucas, Ajay Mago, and Shaun Rogers for research assistance, and Michael Chesterman, Patrick Keyser, David Kohler, Douglas Laycock, Lyrissa Lidsky, Scot Powe, Bill Powers, Larry Sager, Eric Barendt, and colloquia participants at Australian National University, Melbourne University, Murdoch University, and the University of Texas for helpful comments.