Should internet giants like Facebook be held accountable for republishing defamatory content? How will courts handle lawsuits arising from the COVID-19 pandemic? The answers will be found in a centuries-old legal area called tort law, which enables private individuals to sue those who’ve harmed them for monetary compensation or a court order to stop the behavior. While tort law has been around a long time, a movement—known as tort reform—argues that tort litigation happens too often, with financial awards that put too great a strain on businesses.
In a new book, “Recognizing Wrongs,” Harvard Law School Professor John Goldberg and Fordham Law Professor Benjamin Zipursky argue that much of the criticism comes from failing to appreciate tort law’s character and purposes. The pair, who’ve been talking and writing together ever since they met in their first year of law school, say that while particular reforms might be justified, the tort reform movement is too broad in scope and too skeptical in spirit. In a conversation with the Bulletin, Goldberg discussed his and Zipursky’s vision of tort law—which is more about wrongs and responsibilities than deterrence and compensation—its change-inducing potential, regulating internet speech, and the litigation likely to stem from the COVID-19 pandemic.
In your book, you argue that the tort reform movement’s rise is partly the result of misconceptions about tort law. Could you expand on that?
John Goldberg: For much of the 20th century, if you asked an American law professor what tort law is all about, the standard response would have been that it is law that uses the threat of liability to get people or firms to change their behavior. Or even if it can’t change their behavior, at least it gets money in the hands of people who’ve been injured and probably need or deserve it. So, you’re either deterring or compensating (or both).
If you understand tort law as a system of deterrence or compensation, then it looks like it’s just another tool in the government’s arsenal to regulate behavior. But it’s regulating through private actors, which is already a little strange, and it requires ordinary lay jurors rather than experts to do the regulating. That’s a regulatory system that’s going to provoke a lot of worries.
One of the central claims of the book is that this is all just a big misunderstanding or mischaracterization of what tort law is. Tort law has regulatory effects, to be sure, but it’s fundamentally about setting rules for how we’re supposed to treat each other (including how firms are supposed to treat individuals) and to provide redress for people who are injured when those rules are broken. It’s much more about wrongs and responsibility than deterrence and compensation. Once we see this, the argument that tort is just lousy regulation loses much of its force.
Do you think there’s a type of change-inducing public outrage that’s especially connected to tort lawsuits?
I think that is a role that tort law plays. One of the book’s core claims is that a central aspect of tort law is judges and juries announcing or articulating norms that apply to and govern certain kinds of interactions. In other words, tort law helps reinforce and sharpen and refine these norms, including when there are high-profile lawsuits that do become newsworthy and that can have a kind of educative function.
One example of this from a few years ago involved a defect in certain GM car models that would cause the driver’s key to pop out of the ignition if it was attached to a heavy keychain, which would deactivate the airbags and other systems, and which might cause a crash or prevent the airbags from deploying in a crash. Of course, the automobile industry is heavily regulated—we have a federal Department of Transportation, for example, that issues recall notices. But nothing happened on the regulatory front until, alas, people were badly injured or killed in accidents because of these defective ignition switches. Then they or their survivors sued in tort, asserting that they had been wrongfully injured by the defendants’ defective products. And it was those lawsuits that helped bring the problem to national attention.
In the book, you worry about how courts have interpreted a law protecting some internet platforms that are used as mediums to spread defamatory content. What are courts getting wrong?
Section 230 of the Communications Decency Act has basically been interpreted by courts so that if a defamatory statement is communicated through the internet, even anonymously, websites and platforms such as Facebook can recirculate and repost the statement as much as they wish and they will be shielded from liability for the damage done. Yet a longstanding rule of tort law in this area, in defamation law, is that if you pass along or publicize someone else’s defamatory statement, you’re on the hook for that. It’s called the republication rule. It has various exceptions and qualifications, but that’s the basic idea. While Congress clearly intended to provide some protection to platforms and websites, there is no evidence that it meant to give individuals or firms impunity to decide whether to repost defamatory statements. It’s hard to prove, but we worry that the courts’ consistent over-reading of Section 230 may be part of the reason why there are so many injurious falsehoods circulating on the internet.
Can you say more about that?
The concern is that, if you give the Facebooks of the world blanket immunity, then they understand themselves to have no responsibility. And (shockingly!) you then discover that the internet is a cesspool of misinformation and defamatory information. We’re not saying that if you read this law correctly, all those problems would magically disappear. But it would be one step among several that might encourage the platforms to restore notions of accountability and responsibility that might in turn permit healthier, more constructive, more truth-based discourse on the internet.
As manufacturers and healthcare providers respond to the spread of COVID-19, do you see any special tort liability issues arising? Should the government be doing anything to alter the normal liability risks when it comes to the current pandemic?
Right now, everyone should be focused, and most people are focused, on dealing with the crisis and finding ways to limit the horrendous toll it is taking. But it is likely that, when things calm down a bit, persons who have suffered injuries in connection with the crisis will bring tort claims against others allegedly responsible for their injuries. In many cases, defendants will benefit from the fact that tort law, following common sense, tends to give persons facing crises greater latitude: Conduct and decisions that might be deemed by a court to be unreasonable or otherwise unlawful in ordinary circumstances will often be deemed reasonable or lawful in the face of a genuine emergency. This may also prove to be an apt moment for the kind of targeted tort reform (as opposed to blunderbuss reform) that we suggest may sometimes be warranted. And in fact, the federal government and state governments have provided some limited immunities that apply, for example, to firms providing health care workers with badly needed protective equipment that meets certain standards. But in the end, even in a dire emergency, individuals and firms are subject to legal rules and responsibilities, and in some instances, it is certainly possible that a breach of the rules that causes injury to another will and should give rise to tort liability.
At a Harvard Law School Library book talk on Feb. 25, John Goldberg and Benjamin Zipursky discussed their new book, “Recognizing Wrongs,” with panelists Danielle Citron, professor at Boston University School of Law; Noah Feldman, HLS professor and director of the school’s Julis-Rabinowitz Program on Jewish and Israeli Law; and Frank I. Michelman ’60, Robert Walmsley University Professor, Emeritus, Harvard Law School.