The recent Food Lion case highlights attempts by those suing the press to short‐circuit First Amendment protections by attacking how news is gathered rather than its publication. This article examines recent cases illustrative of this trend, which may have been accelerated by unfortunate statements in a 1991 United States Supreme Court case, Cohen v. Cowles Media Co. Next, the article analyzes and critiques the current state of the law, with particular attention to the somewhat ambiguous issue of when First Amendment scrutiny is triggered. Finally, the article suggests a new analytical framework that provides heightened protection for the press as it goes about the vital process of gathering news

Triggering the first Amendment: Newsgathering torts and press freedom

This Commentary examines when, consistent with First Amendment principles of free expression, speakers can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. It argues that recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking “troll storms” provide a timely analytical springboard into the issue of vicarious tort liability. Furthermore, such liability is particularly problematic when a speaker’s message urging action does not fall into an unprotected category of expression, such as incitement or true threats, and thus, were it not for tort law, would be fully protected.

In examining the possibility of vicarious tort liability, this Commentary reviews the U.S. Supreme Court’s “authorized, directed, or ratified” test for vicarious liability, which was established more than thirty-five years ago in the pre-Internet-era case of NAACP v. Claiborne Hardware Co. The Commentary concludes by proposing a framework for vicarious liability when speakers urge action that results in others’ tortious conduct.

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Troll Storms and Tort Liability for Speech Urging Action by Others: A First Amendment Analysis and An Initial Step Toward A Federal Rule

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Paul A. LeBel

Papers

The Constitutional Interest in Getting the News: Toward a First Amendment Protection from Tort Liability for Surreptitious Newsgathering