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The Constitution intersects with tort law, broadly conceived, in various ways. Most basically, the due process clauses of the Fifth Amendment and fourteenth amendment require that in any legal proceeding enforced by public authority in which a property interest is at stake, as it almost invariably is in a tort suit, the parties must be accorded procedural due process and the equal protection of the laws. These requirements, however, are not cumbersome. As the Supreme Court said in Snyder v. Massachusetts (1934), a state remains "free to regulate procedure of [its] courts in accordance with [its] own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our peoples as to be ranked as fundamental." Moreover, due process of law does not always require a proceeding in court. The states are free, for example, to replace the traditional common law approach to employee injuries with an administrative workers' compensation system, as all states have now done.

Beyond these rudimentary requirements of procedural due process, which apply to all state-enforced proceedings, the interactions between the Constitution and tort law become considerably more complex. To begin with, the Constitution sometimes functions as a sword, that is, as a source of rights that may be protected by tortlike civil action and damage remedies, and sometimes functions as a shield, that is, as an obstacle to civil actions and remedies that would otherwise be available under state or federal law. Moreover, the Constitution interacts with tort law as a sword and as a shield both directly and obliquely. We begin with the Constitution's more indirect interactions.

By virtue of the supremacy clause (Article VI, clause 2), the Constitution is the ultimate source of congressional authority. Thus, the Constitution is indirectly the source of all tortlike civil causes of action created by federal statutes. Where a statute explicitly creates a private cause of action, this area of law raises few problems. However, many federal regulatory and criminal statutes specify standards of conduct without expressly authorizing suits for money damages. Not surprisingly, individuals injured by violations of these laws often ask the federal courts to create private causes of action with damages as a remedy. All agree that the issue of whether the federal courts should infer such a cause of action is a matter of statutory construction and that what must ultimately be determined is whether Congress intended to create the private remedy asserted. Yet, the question of what constitutes sufficient evidence of congressional intent and how restrictive or liberal the Court should be in finding implied private causes of action is highly controversial and has sharply divided the Court. It is clear, however, that during the twenty-five years since its 1964 decision in J. I. Case Co. v. Borak, where the Court seemed willing to create a private right of action wherever doing so would help effectuate the purpose of the statute, the Court has generally grown increasingly hostile toward implied causes of action. The prevailing view on the Court now seems to be that first expressed by Justice lewis f. powell in his dissent in Cannon v. University of Chicago (1979): "absent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action."

The Constitution is also the ultimate source of authority for the federal tort claims act, which provides that the "United States shall be liable … to tort claims in the same manner and to the same extent as a private individual under like circumstances" (28 U.S.C. 2674). The act does not create new causes of action. Rather, it constitutes a waiver of sovereign immunity by the United States for negligent acts by its employees that would constitute torts in states where the conduct occurs. The act has many important express exceptions (such as an exception for intentional acts and for "discretionary functions") and the Supreme Court has inferred additional exceptions (such as the bar to suits by members of the armed forces for injuries they incur while in the military). Nevertheless, the act, which was not passed until 1946, remains the only basis for recovery of damages from the United States for the torts of its employees.

Not only is the Constitution the ultimate source of authority for federal statutes that create or permit tortlike causes of action, but it is also the ultimate source of authority for federal statutes that preclude state tort remedies that would otherwise be available. In this case, too, the issue is one of statutory interpretation (did Congress intend to displace state laws dealing with the same subject matter as the federal statute?), and here, also, the issue is easily resolved where Congress made it clear that the federal statute is intended to preempt the relevant state law. For example, in Duke Power Co. v. Carolina Environmental Study Group, the Court upheld the Price-Anderson Act, which expressly limited aggregate liability for a single nuclear power plant accident to $560 million, thereby limiting the tort remedies that might otherwise be available to plaintiffs in state courts. The Court rejected the claim that the statute resulted in an unconstitutional deprivation of the property rights of potential accident victims.

More difficult issues arise where Congress's intent with respect to state law is unclear. For example, the Federal Cigarette Label and Advertising Act requires that cigarette packages be marked with certain specified warning labels. Although the act forbids states to require additional warnings of any kind, the act does not make it clear whether, or to what extent, state courts are precluded from allowing tort actions by smokers who claim to have been harmed by smoking cigarettes sold with the requisite federal warnings. This issue is now being widely litigated in state and lower federal courts.

Although there are limits to generalizations that can be drawn, it seems that the Supreme Court has been unwilling to find preemption of state tort remedies in the absence of clear legislative intent to displace state law. For example, in Silkwood v. Kerr-McGee Corp. (1984), the Court held that state laws awarding punitive damages for injuries resulting from the escape of plutonium from a nuclear plant were not preempted by the extensive federal regulatory scheme governing the safety of nuclear plants.

Both the implied-cause-of-action cases and the preemption cases raise issues of statutory interpretation. Unquestionably, Congress has broad constitutional power to create new tortlike causes of action or, instead, to abolish or replace existing causes of action. In recent years, however, the Supreme Court has tended to construe federal statutes narrowly, leaving things as they are in the absence of a clear indication of an intent by Congress to change them. Thus, the Court has been reluctant either to infer private causes of action from federal statutes or to find that state law has been preempted by federal statutes.

The Constitution not only affects tort law indirectly through the commands of federal statutes, but bears directly on tort law as a source of tortlike causes of action against governmental officials and entities and as an obstacle to tort actions and remedies that would otherwise be available. We begin with the constitution as a sword.

The idea that compensatory and punitive-damage actions could be premised on the Constitution itself took some time to develop, particularly where the defendant was an official of the federal government. The common-law courts tended to treat an official who invaded the protected interests of another without legal authority simply as a private individual who had committed a tort. The bill of rights, which originally applied only to the federal government, incorporated some common-law norms against unjustified official invasions of person and property. For example, it forbids federal officials from making unreasonable searches and seizures, forbids issuance of search warrants without probable cause, and forbids deprivations of life, liberty, or property without due process of law.

Until the civil war, the Constitution played only an indirect role in tort actions against federal officials. A person who believed that his or her person or property had been wrongfully invaded by a federal officer would bring a common-law trespass action against him. The official pleaded justification—that he or she had been acting within his or her constitutional and statutory authority, so the action was not tortious. For example, an official might argue that a seizure of the plaintiff's property was reasonable. The issue of reasonableness could have been characterized as a question of whether the plaintiff's fourth amendment rights had been violated. But neither the parties, nor the courts it seems, perceived the action as different from an ordinary tort action because the constitutional and preexisting common-law standards were largely coextensive.

The constitutional amendments and legislation of the reconstruction era increased the interplay of tort law and the Constitution, particularly in actions against state and local officials. With the Fourteenth Amendment, the common-law protections against unjustified invasions of liberty or property were now constitutionalized as against state and local officials rather than only against federal officials. And new rights that were not recognized at common law, such as the right to equal protection of the laws, were added to the Constitution.

In addition, the 1871 Civil Rights Act recognized under color of state law a cause of action for invasion of rights secured by the Constitution, and the judiciary act of 1875 extended federal court jurisdiction to federal question cases generally. Before the Civil War, plaintiffs had brought suits against government officers as tort claims, and the constitutional issues arose by way of answer and reply. The Reconstruction legislation, however, offered the plaintiffs a federal forum if they pleaded a constitutional violation in their complaints. Over time these "constitutional" torts came to be viewed as separate from the common-law tort actions from which they derived. This separation occurred in part because constitutional rights came to include some rights that had not received protection in common-law actions, such as rights to free speech. In addition, the demise of the concept of a general nationwide common law made lawyers look for federal or state positive-law sources for interests that the courts would protect and look to the source of constitutional tort actions as the Constitution rather than general tort law.

Today federal court actions against state and local officials for constitutional invasions are primarily brought under section 1983 of the 1871 Civil Rights Act. Suits against local government entities—although not states, which are usually shielded from federal court liability by the eleventh amendment—can also be brought in federal courts under section 1983. (Local governments are liable, however, only for their own unconstitutional policies, not for the unauthorized tortious acts of their employees.) There is no counterpart to section 1983 for suits against federal officials. Therefore, a claim against a federal official, such as the claim that an FBI agent violated the plaintiff's Fourth Amendment rights, must be rooted in the Constitution itself. Although the general federal-question statute empowers federal courts to adjudicate cases arising under the Constitution, neither that statute nor the Constitution itself expressly creates a cause of action for money damages. It was not until 1971, in the landmark case of bivens v. six unknown named agents, that the Supreme Court ruled that a federal official can be sued for money damages as a cause of action implied from the Constitution itself—in this case, from the Fourth Amendment. Bivens made clear that the constitutional claim was not tied to the niceties of state tort law: "The federal question becomes not merely a possible defense to the State Law action, but an independent claim both necessary and sufficient to make out the … cause of action."

Since Bivens, the Court has recognized other constitutional provisions, such as the Eighth Amendment's proscription on cruel and unusual punishment, as bases for damage actions. Bivens, however, leaves many open questions, most crucially, whether the availability of a cause of action against federal officers for money damages is required by the Constitution itself or is federal common law that Congress could abolish by statute. In recent years the Court has rejected a variety of constitutional damage claims either because, in the Court's view, Congress had provided an alternative remedy or, more broadly, because the Court perceived "special factors" counseling caution in inferring a constitutional cause of action for damages. Moreover, the Supreme Court has ruled that both state officials sued under section 1983 and federal officials sued in a Bivens action possess some degree of immunity from liability (municipalities sued under section 1983 do not). Some officials, such as judges and prosecutors performing their official duties, enjoy absolute immunity from suit, but most officials are accorded only a "qualified," or "good faith," immunity. This form of immunity, which has little support in the common law and is not mentioned either in section 1983 or in the Constitution itself, must be claimed as an affirmative defense. Although this partial immunity is often called good-faith immunity, the Supreme Court's most recent formulation in Harlan v. Fitzgerald (1982) makes clear that the test is an objective one: "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Although the rights litigated in these "section 1983" and Bivens suits are rights secured by the Constitution and the various immunity doctrines are peculiar to suits against governmental officials, these actions are still seen in some respects as in the nature of tort actions, as shown by the borrowing of state-tort statutes of limitation. In addition, many such constitutional actions, for example, those seeking damages for illegal searches or arrests, resemble common-law actions that may be brought under state tort law or, in limited cases, under the Federal Tort Claims Act if the violator is a federal law enforcement official. Other "constitutional tort" actions go beyond the common law—for example, an action under the 1871 Act claiming that one was dismissed from public employment for exercising one's first amendment rights. Actions for official negligence typically are relegated to traditional tort remedies, as are some intentional torts, such as libel.

If it took a surprisingly long time for the Court to rule that the Constitution could itself be the source for tortlike causes of action for damages, it took almost as long for it to rule that the Constitution could be an obstacle to tort remedies otherwise available. The primary constitutional limit on common-law private tort actions is the First Amendment's prohibition against "law[s] … abridging the freedom of speech or of the press." Originally, this prohibition applied only to Congress, but with the incorporation of the Bill of Rights into the Fourteenth Amendment, it became applicable to state governments as well. Nevertheless, it was not until new york times v. sullivan (1964) that the Supreme Court interpreted the First Amendment as a limitation on damage remedies in private suits brought under the states' common law of libel. Although it might seem anomalous that constitutional language securing rights against the government would also come into play in legal actions between private parties, by the time of Sullivan it had become clear that a state could infringe constitutionally protected interests by enforcing a legal judgment as well as by enacting a statute.

In Sullivan, a city commissioner of Montgomery, Alabama, brought a libel action in state court against the New York Times and four black ministers who had advertised in the Times, appealing for contributions to a legal-defense fund for martin luther king, jr. , who had recently been arrested in alabama on a perjury charge. the ad, which had not mentioned sullivan, made several assertions about the conduct of the montgomery police that were largely, though not entirely, accurate. sullivan claimed that because his duties included supervision of the montgomery police, the allegations against the police defamed him personally. an alabama jury awarded him $500,000. by the time the case reached the supreme court, it was but one of eleven libel claims totaling $5,600,000 pending against the Times in Alabama; it was obvious that the Sullivan litigation was part of a concerted effort to discourage the press from supporting the civil rights movement in the South and to silence the movement's leaders. This effort, moreover, seemed likely to succeed, for under the common law of Alabama and most other states it was difficult to defeat these libel claims. Under standard common-law rules governing libel actions, truth was an affirmative defense, but the evident inability of civil rights advocates to prove to hostile juries the "truth" of statements criticizing popularly elected officials posed the clear danger that speech would be stifled by the threat of crushing civil liability. And in most states the common-law rule of strict liability for defamation recognized no privilege of "fair comment" for statements of fact that were false. To combat this danger to First Amendment values, the Court in Sullivan ruled that a statement criticizing a public official and relating to matters of public concern could be actionable under state libel law only if the statement were defamatory, false, and made with actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

In subsequent years, the Court recognized that "the establishment" against which caustic political speech was often addressed encompassed more individuals than merely those who actually held public office. Indeed, there are many people, such as labor leaders or prominent business leaders, who may be so powerful or influential that their actions clearly affect the outcome of political controversies. Acknowledging this reality, the Court, in the cases of Associated Press v. Walker and Curtis Publishing Company v. Butts (1967), extended the Sullivan rules to libel actions brought by public figures. However, in gertz v. robert welch, inc. (1974), the Court recognized that there are other people who, although perhaps well known, have not so injected themselves into public controversy as to become public figures for purposes of the First Amendment's limitations on libel actions. Where such a nonpublic figure brings a libel suit, there is much less likelihood that a libel action is a state-supported attempt to silence unpopular speech. Moreover, such private individuals have a correspondingly lesser opportunity than public figures or public officials to obtain access to the media to rebut the allegedly defamatory statements. Thus, the Court ruled in Gertz that private plaintiffs in such cases need only to show whatever standard of fault the state requires, although some level of fault (at the least negligence) is a constitutional requirement for recovery.

First Amendment concerns ebb as the public status of the plaintiff decreases, but the status of the plaintiff is not the only factor that determines whether the challenged speech is entitled to special constitutional protection. In DUN & bradstreet v. greenmoss builders, inc. (1985) the Supreme Court ruled that special First Amendment protection extends only to speech relating to matters of public concern. If the challenged statement touches only matters of private concern, there is little danger that state libel law is being used to silence unpopular political speech, and so the states are free to apply whatever libel law they choose. It is possible, in theory, that public officials or public figures might thus succeed in silencing the speech of unpopular critics. But it is clear that a given topic of interest may change categories as the social status of the plaintiff changes, so that matters that are "private" in the context of statements about private citizens may be of public concern in the context of statements about public officials or public figures.

The Court's First Amendment libel jurisprudence has become extremely—some would say unduly—complex and has required extensive revamping of not only substantive libel law, but procedural and remedial libel law as well. For example, in a "public concern" case the defendant no longer bears the burden of persuasion on the issue of the truth of the alleged defamation. Now, in a departure from the common law, it is the plaintiff who must prove that the challenged statement contains an untrue assertion before any liability will exist. And although falsehood may be established by the common-law standard of a preponderance of the evidence, "actual malice" (in the case of a "public official" or "public figure" plaintiff) or negligence (in the case of a "private individual" plaintiff) must now be established by clear and convincing evidence. In addition to these changes in trial procedure, the Court has effected a change in appellate procedure in libel actions, ruling in Bose Corporation v. Consumers Union of United States, Inc. (1984) that a reviewing court is not to accord trial court findings the normal "clearly erroneous" standard of deference. Instead, said the Court, the First Amendment requires that an appellate court independently evaluate the evidence in the record to determine whether there is clear and convincing evidence of "actual malice" or the appropriate level of fault.

With respect to remedies for libel and defamation, the law is also complex and, perhaps, in a state of flux. But in essence, the current rule is the following: where the speech relates to matters of public concern, regardless of the social status of the target of the speech, presumed and punitive damages may be awarded only upon a showing of actual malice (of course, where the plaintiff is a public official or public figure, no damages at all will lie, absent a showing of actual malice); but where the subject matter of the speech is purely private, the First Amendment places no limitation on any type of damages.

Many libel plaintiffs also allege that they are entitled to recover on some other basis, such as invasion of privacy or intentional infliction of emotional distress. Like libel, these other causes of action also present the risk of state-supported attempts to silence controversial or unpopular speech. Not surprisingly, when the Court in hustler magazine v. falwell (1988) considered whether the First Amendment places any limitations on actions for intentional infliction of emotional distress, it held that a public official or a public-figure plaintiff in such an action must prove that the statement at issue contains a false assertion made with actual malice. The Court did not discuss the public concern/private concern distinction of Dun & Bradstreet, but its reasoning suggests that emotional distress actions, as well as other tort actions based on defendant's speech, must be analyzed in light of the same First Amendment principles as libel actions.

Until now, the First Amendment has been by far the most important source of constitutionally based limitations on tort law. But the Court will soon consider whether the due-process clause of the Fourteenth Amendment places some limits on the award of punitive damages under state law, not only for speech related torts, such as libel and slander, but for all torts. As punitive-damage awards have skyrocketed in recent years, business interests have argued for some constitutionally based limits on the size of punitive awards. In Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc. (1989) the Court ruled that the Eighth Amendment's excessive fines clause applies only to criminal cases and not to awards of punitive damages in civil suits between private parties. However, the Court expressly left open the possibility that the due-process clause regulates in some way the imposition of punitive damages in such suits.

Silas Wasserstrom Anne Woolhandler


Jeffries, John C. 1989 Compensation for Constitutional Torts: Reflections on the Significance of Fault. Michigan Law Review 88:82–103.

Nichols, Gene 1989 Bivens, Chilicky, and Constitutional Damages Claims. Virginia Law Review 75:1117–1154.

Smolla, Rodney 1987 Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Coursè of Defamation. Georgetown Law Journal 75:1519–1573.