Reducing the Cost of Free Expression: A Call for Fee Shifting in Cases Challenging Freedom of Expression

Authors

Neil I. Shapiro
Ross D. Tillman

Abstract

Those who offer information or express ideas, whether in book, essay, film, or music, and those who distribute or sell the vehicles for such expression have sometimes been sued by individuals claiming physical or emotional injury allegedly flowing from such expression. Suits have included claims that reliance on factual or quasi-factual representations in expressive or informative works resulted in injury to the plaintiff, as well as claims that such works influenced the conduct of third parties who in turn inflicted injury on the plaintiff.

While those faced with such claims routinely prevail, the costs of so doing can be substantial. The prospect of such costs inevitably chills speakers' enthusiasm to share their knowledge and views, and consequently renders us all somewhat poorer. This Article proposes legislation to address that problem by allowing for the early challenge to such suits and by shifting defense costs and attorney fees to the plaintiff when such an early challenge is successful.

Recommended Citation

Neil I. Shapiro and Ross D. Tillman, Reducing the Cost of Free Expression: A Call for Fee Shifting in Cases Challenging Freedom of Expression, 17 UC Law SF Comm. & Ent. L.J. 571 (1995).
Available at: https://repository.uclawsf.edu/hastings_comm_ent_law_journal/vol17/iss3/1