I agree with Eugene that the first amendment limits a state's power to
impose tort liability for engaging in protected speech, and that those
limits extend to liability for tortious interference, but I have
difficulty conceiving of how those limits could even plausibly apply
to Safranek's claim for tortious interference. I appreciate and
concur in the quibble; I just can't make it fit the particulars of
this case.
Mike
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
I largely agree with Michael's point, but want to offer a
small quibble: I would think that the right of expressive
association, and for that matter of free speech, might sometimes
preempt the tort of interference with a contractual relationship --
for instance, if a group pickets to urge some organization to take
some action even if the action involves breaching the organization's
contracts. See, e.g., Jefferson County Sch. Dist. No. R-1 v.
Moody's Investor's Servs., Inc., 175 F.3d 848, 857-58 (10th Cir.
1999) (citing Hustler v. Falwell to reject a "reading of state
[interference with contract] tort law ... [under which] the
protection afforded to an expression of opinion under the First
Amendment might well depend on a trier of fact's determination of
whether the individual who had published the article was motivated
by a legitimate desire to express his or her view or by a desire to
interfere with a contract").
Eugene
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter
Sent: Wednesday, July 01, 2009 5:49 AM
To: Law & Religion issues for Law Academics; Rick Duncan
Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful
termination suit
Why would the assumed right of expressive association preclude
liability for breach of contract, for fraud, or for tortious
interference with a contractual relationship? To be sure Ave Maria
might regret having chosen to grant tenure to its faculty, but having
done so, why would a right of expressive association permit it to
ignore the contractual and tort duties arising from the contract it
freely entered? Without conceding the right as applied to the school,
why would its presumed existence affect any of the claims against
either the school or the individual defendants?
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Rick Duncan <nebraskalawp...@yahoo.com>:
> Even if the ministerial exception doesn't apply, why wouldn't the
> right of expressive association apply to a school's right to exclude
> teachers who are part of its expressive mission? Surely, Ave Maria
> is at least as much of an expressive association as are the BSA. No?
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
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