Cory Andrews (Washington Legal Foundation) has posted Public Nuisance & The First Amendment: Free-Speech Defenses to an Expanding Tort on SSRN. Here is the abstract:
Public nuisance—an ancient common-law tort traditionally limited to discrete, localized interferences with rights common to the public—has undergone a dramatic expansion. Once confined to tangible obstructions of highways, contamination of waterways, or disorderly houses amenable to abatement, the doctrine now serves as a vehicle for private plaintiffs and governments to impose massive liability on manufacturers and platforms for harms allegedly caused by third parties’ misuse of lawful products. The innovation lies not merely in stretching the tort to cover product marketing or distribution, but in recharacterizing protected speech—advertisements, scientific communications, policy advocacy, and even algorithmic curation of user-generated content—as the actionable “nuisance” itself.
This Article shows that such claims collide directly with core First Amendment protections. By fastening liability on the content of a defendant’s promotional, scientific, or editorial speech—or on the speaker’s identity as a disfavored manufacturer or platform operator—these theories trigger strict scrutiny as content- and speaker-based restrictions. They cannot be salvaged by relabeling speech as “marketing conduct,” by invoking intermediate scrutiny precedents inapposite to fully protected expression, or by open-ended “reasonableness” balancing that would let juries second-guess the social value of protected speech. Classic precedents like Near v. Minnesota and Vance v. Universal Amusement Co. confirm that the label “public nuisance” supplies no license to impose prior restraints or penalties on expression.
Drawing on recent litigation involving opioids, firearms, lead paint, climate change, vaping, and social media, the Article shows how these suits erode traditional tort limits (control, causation, and remedy) while inviting vagueness and viewpoint discrimination. It argues that courts should explicitly cabin public nuisance to avoid swallowing protected speech and that legislatures should enact targeted reforms where judicial doctrine proves insufficient. In an era of proliferating mass-tort and regulatory-end-run litigation, preserving the boundary between actionable conduct and protected expression is essential to both tort coherence and constitutional liberty.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum