[Volokh] Eugene Volokh: The Original Understanding and the Constitution in Civil Lawsuits:

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Posted by Eugene Volokh:
The Original Understanding and the Constitution in Civil Lawsuits:
http://volokh.com/archives/archive_2008_07_27-2008_08_02.shtml#1217533219


   Occasionally I see questions about whether the constitution should
   apply to civil lawsuits in which the government is not a party -- for
   instance, most libel lawsuits, child custody decisions, and the like.
   [1]New York Times Co. v. Sullivan (1964), as well as other First
   Amendment cases, have famously said "yes," because even in civil
   lawsuits a government actor (the judge, jury, or both) is applying a
   government-created rule of law using government coercive power. And I
   think this is logically right: Imagine, for instance, that courts or
   the legislature adopted a rule that anyone offended by racist, sexist,
   antiveteran, or blasphemous speech could sue the speaker. Whatever one
   thinks the First Amendment result ought to be (and there is a hot
   debate, especially as to similar, though narrower, rules in
   [2]workplace harassment law), surely there needs to be a substantive
   First Amendment analysis. The fact that the speaker must pay civil
   damages (compensatory and maybe even punitives) shouldn't distinguish
   the case from the government's imposing monetary fines for such
   speech.

   (Contract disputes, such as those in [3]Shelley v. Kraemer, are a
   different story; Shelley is rightly more controversial than New York
   Times Co. v. Sullivan, and has been less productive of further
   precedents. But the short answer, I think, is that a breach of
   contract or trespass to property lawsuit does involve government
   action, though in many situations may not involve unconstitutional
   government action, see, e.g., [4]Cohen v. Cowles Media Co..)

   But people still ask: Is this consistent with the original
   understanding of the First Amendment (or perhaps of the Fourteenth
   Amendment, when state litigation is involved)? This may be largely
   irrelevant as a practical matter, given how much precedent endorses
   the Sullivan view. Even many judges who generally approve of
   originalism are unlikely to disturb such solid bodies of precedent;
   Justice Scalia, for instance, has expressly said this in other
   contexts, and while Justice Thomas is more willing to reverse
   well-established precedents, even he is unlikely to go to the original
   meaning in all contexts, and when he is, he's often alone.

   Here's my answer, based on reading a bunch of early free speech/press
   cases over the years: Free speech and free press objections to civil
   libel and slander lawsuits were often raised in the early decades of
   the Republic, and while they were often rejected on substantive
   grounds -- the courts took the view that defamatory speech was
   constitutionally unprotected, whether against civil liability or
   criminal punishment -- they were not rejected on "lack of government
   action" grounds. Sullivan's insight that even civil litigation still
   involves government power and is thus subject to government
   constraints seems to have been broadly accepted in the late 1700s and
   early 1800s. See, e.g., Root v. King, 7 Cow. 613 (N.Y. Supp. 1827);
   Mayrant v. Richardson, 10 S.C.L. 347 (S.C. Const. Ct. App. 1818); Reid
   v. Delorme, 4 S.C.L. 76 (S.C. Const. Ct. App. 1806); Harris v.
   Huntington, 2 Tyl. 129 (Vt. 1802); Middlesex Gaz., Mar. 12, 1791, at 1
   (reprinting charge to a jury in Freeman v. Gardiner); Am. Mercury,
   Dec. 26, 1799, at 2 (charge to the jury in Rush v. Cobbett). And in
   Mayrant, Reid, and Harris (the latter two of which were cases
   involving the right to petition the government, rather than just the
   freedom of speech or press more generally), the plaintiff actually
   prevailed, based partly on constitutional principles.

   So the Framers recognized that courts, including courts applying
   court-made common law rules, were agents of the government and
   generally subject to constitutional constraints. The early decisions
   were all state decisions applying state constitutions; but my readings
   suggest to me that -- despite the use of the word "Congress" in the
   First Amendment -- the scope of state freedom of speech/press/petition
   guarantees was seen as largely interchangeable with each other, and
   with the First Amendment. (Certainly early federal court cases, even
   ones applying judge-made speech restrictions and not statutorily
   enacted ones, treated the First Amendment as at least potentially
   applicable.) So my sense is that the original understanding of the
   First Amendment, and also the traditional one in the centuries since
   the Framing, is that it does apply to civil litigation, though the
   exact scope of the constitutional rules has of course changed over
   time.

References

   1. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=376&invol=254
   2. http://www.law.ucla.edu/volokh/harass
   3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=334&invol=1
   4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=501&invol=663