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Hastings Constitutional Law Quarterly

Abstract

This Article traces the development of the tort of tortious interference with contract from its early English antecedents through the first and second Restatements. The Article discusses the case law that has generally established a "privilege" for the communication of truthful information. This "privilege" was recognized by the American Law Institute in § 772(a) of the Restatement (Second) of Torts.

The article then considers whether the recognition of a "privilege" for the communication of truthful information is required under the First Amendment to the United States Constitution. It concludes that, under applicable United States Supreme Court precedents, the communication of truthful information is constitutionally protected, regardless of the motive of the actor and regardless of its effects on existing contractual relationships, so long as (1) the information was obtained lawfully, (2) the actor has not expressly or impliedly agreed not to disclose the information, (3) disclosure of the information would not constitute a public disclosure of private facts, and (4) disclosure of the information would not impinge upon some "state interest of the highest order" or, where commercial speech is involved, a "substantial" government interest.

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