Strict Liability Beyond Crime

Strict Liability Beyond Crime

The Code's insistence on culpability is a decision about criminal law, and it can look like a universal principle until one sees how ordinary liability without fault is in other fields. In tort, strict liability rests on a view about how to resolve a contest between two innocent parties: when the plaintiff was harmed and the defendant did nothing blameworthy, the defendant may still be required to bear the loss.¹ The reasoning is economic. A defendant who pays all the costs of an activity will carry it on only at a level the activity can sustain, and a business can insure against that liability and spread the cost across its customers, so an activity that cannot survive its own costs is not one society needs.² A criminal conviction offers no comparable outlet. The cost of error to a convicted defendant is condemnation rather than a damages award that insurance can absorb, which is the premise behind the Code's rule that a conviction resting on absolute liability under a non-Code statute yields only a violation, punishable by a fine or civil penalty.³

Tort strict liability is also bounded. It is strict without being absolute, because it attaches only where a dangerous activity is abnormally so or where one party answers for another's conduct, which makes it a rule about activities rather than about individual acts of carelessness.⁴ Product cases follow the same pattern. In Greenman v. Yuba Power Products, Inc. the court held a manufacturer strictly liable in tort when an article it places on the market, knowing that it will be used without inspection for defects, proves defective and injures a person, and it explained that the purpose is to put the cost of such injuries on the manufacturers who market the products rather than on injured people who cannot protect themselves.⁵ In Henningsen v. Bloomfield Motors, Inc. the court reached a similar result through implied warranties that the sales statute imposes by operation of law, so that a maker's or seller's liability does not depend on proof of negligence or knowledge of the defect.⁶ The two decisions differ in their footing: Greenman places the liability in tort and denies that contract-warranty rules govern it, while Henningsen builds on warranty obligations the law attaches to the sale.⁷ Once a claim is framed as strict liability, how carefully the defendant behaved stops mattering, since liability can follow without intent and despite the utmost care.⁸ That is exactly the feature the Court limited in defamation.

Defamation has its own history of liability without fault. Strict liability for defamation was first clearly established in the English decision Jones v. E. Hulton & Co., decided in 1909 and affirmed the next year, and many American jurisdictions applied the same standard, though Pennsylvania did not.⁹ At common law, then, a publisher who acted in good faith and with care could still answer for a false defamatory statement. The constitutional overlay changed that for private plaintiffs. In Gertz v. Robert Welch, Inc. the Court held that, so long as states do not impose liability without fault, they may define for themselves the standard of liability for a publisher or broadcaster of a defamatory falsehood that injures a private individual.¹⁰ Two interests explain the line: the state has a legitimate interest in compensating private individuals for injury to reputation, and the First Amendment requires some falsehood to be protected so that speech that matters is protected.¹¹ The mechanism is easy to trace. If a publisher answers for every error however careful, the only safe course is to withhold anything that might turn out wrong, including true and valuable reporting. A requirement of some fault removes that pressure for the publisher who took reasonable care and still leaves the private individual a remedy against one who was careless.

The plaintiff, the report, and the falsehood are the same in both scenarios, and the only fact that moves the answer is whether the statute demands any showing of fault.

The floor was contested at once, and the two dissenting positions attack it from opposite directions over one question: who should carry the risk that a statement turns out to be false. A dissenting opinion in Gertz rejected the majority's hostility to liability without fault. It reasoned that a publisher who releases a statement defamatory on its face knows it could ruin a reputation, so the publisher is not meaningfully faultless merely because of a good-faith mistake, and that the law had long placed the risk of falsehood on the publisher rather than on a private citizen who is innocent and helpless to avoid the injury.¹² The majority's own footnote describes that position as one under which a publisher could be held liable even though it took every conceivable precaution.¹³ A dissenting opinion in Rosenbloom v. Metromedia, Inc. took the reverse view. It would have limited a private individual's recovery to proven actual loss and left states free to choose their own fault standard, with one constitutional exception: absolute or strict liability, like uncontrolled damages and private fines, could not be used, because it treats the printed or spoken word like explosives or dangerous animals and is inconsistent with freedom of the press.¹⁴ The first dissent protects the person defamed and the second protects the publisher, and the Gertz majority sits between them by permitting recovery on a showing of fault. Neither dissent states the law, but together they show that the same concept looks different depending on whether the system sees the speaker or the injured person as the one needing protection.

Constitutional doctrine shapes fault in speech cases in another way as well: a concurring opinion in New York Times Co. v. Sullivan warned that liability resting on a jury's evaluation of the speaker's state of mind can itself constrain public debate, so that an inquiry into mental state that shields a criminal defendant under the Code can burden a speaker in a speech case.¹⁵ Fault standards differ by regime elsewhere in civil law too. In Daniels v. Williams the Court observed that § 1983, unlike its criminal counterpart, 18 U.S.C. § 242, contains no state-of-mind requirement of its own, so the mental state needed depends on the constitutional right invoked, and it held that a negligent act by an official does not deprive a person of life, liberty, or property within the Due Process Clause.¹⁶ The footnotes in Ernst & Ernst v. Hochfelder show the same variation inside federal securities law: a seller escapes civil liability under § 12(2) by proving that it did not know of the misstatement and could not have known of it with reasonable care, while the 1934 Act's express civil-liability provisions, other than those aimed at specific classes of insiders, require a state of mind beyond negligence.¹⁷

The contrast with criminal law therefore concerns the source of the fault requirement. In criminal law it comes from the Code's culpability provisions and the stigma of conviction, so even a non-Code statute that plainly imposes absolute liability yields only a violation.¹⁸ In defamation it comes from the First Amendment and the need to protect expression, and it limits civil liability for damages.¹⁹ In ordinary tort the fault requirement drops away for activities where the defendant is better placed to bear and spread the loss.²⁰ An exam answer goes wrong when it carries the defamation floor into a criminal problem as a general constitutional bar on strict liability, because the Gertz floor governs civil defamation and criminal strictness faces different limits. The Court in United States v. Balint rejected the claim that punishing a person ignorant of the facts denies due process, which leaves the choice to the legislature.²¹ The Code then adds its own grading rule for convictions that rest on absolute liability.²²