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Local Rules

Federal courts have been making their own rules—“local rules”—since the First Judiciary Act. These rules, which operate alongside the Federal Rules, govern all aspects of the litigation process, from the initial filing and case assignment in the district court to the type of disposition of an appeal at the court of appeals. Yet despite their long history, their wide scope, and their deep importance, local rules have not been the subject of scholarly attention for years.

This Article offers the most comprehensive study of local rules to date. It provides an overview of the thousands of rules of the ninety-four district courts and the thirteen courts of appeals, and a report of more than fifty interviews with judges, attorneys, court staff, and academics involved in federal and local rulemaking. It also provides a typology of those rules and a deep dive into their purposes, which include accounting for local needs, providing laboratories of experimentation for federal rules, and offering ways to attract (and even repel) litigation.

Normatively, this Article connects the proliferation of local rules to larger questions within our federal court system. This Article suggests that at least some local variation is inevitable, and so local rules should be understood as one way to express that variation—though not the only way. Local variation can be subjected to a regularized and public process that produces transparent local rules, or it can be pushed down to less systematic standing orders, individual judge practices, and unwritten norms that may favor the local bar. But this is not to say that local rules are all to the good: local rules create problems when they contradict or duplicate federal rules, when they place an unnecessary tax on practitioners, and when they create opportunities for forum shopping and forum selling. Local rules may be inevitable, but they are not infallible—this Article seeks to understand and improve them.

Introduction

The Federal Rules of Civil Procedure are 121 pages.1 1.We rely here on the version of the Federal Rules of Civil Procedure posted on the United States Courts website, https://www.uscourts.gov/rules-policies/current-rules-practice-proced‌ure/federal-rules-civil-procedure [https://perma.cc/76DE-SCGG] (last visited May 30, 2025).Show More The Federal Rules of Appellate Procedure are 65 pages.2 2.Federal Rules of Appellate Procedure, Admin. Off. of the U.S. Cts., https://www.uscourts.‌gov/rules-policies/current-rules-practice-procedure/federal-rules-appellate-procedure [https:/‌/perma.cc/Y3J9-BMWP] (last visited May 30, 2025).Show More These rules answer many questions about procedure in federal court, but no one who has even a passing acquaintance with federal practice believes they answer every such question. The rules themselves admit as much. Civil Rule 83 and Appellate Rule 47, building on acts of Congress, expressly authorize federal courts to adopt local rules.3 3.Fed. R. Civ. P. 83; Fed. R. App. P. 47; see also infra Part I (describing the origin of local rulemaking).Show More And in dozens of places, the Federal Rules explicitly or implicitly invite lower courts to develop local rules to supplement, elaborate upon, or depart from the Federal Rules.4 4.See infra Part II.Show More

Over the years, the United States district and circuit courts have issued thousands of local rules, including rules on many topics left wholly unaddressed by the Federal Rules. Some might think that local rules cover only small details—the “housekeeping”5 5.Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909, 913–15 (1990).Show More of the federal courts. And it is true that some can feel rather trifling. To take one example, the U.S. Court of Appeals for the Second Circuit’s Local Rule 31.1 states that “[i]n all cases, a party must submit 6 paper copies of each brief”—full stop.6 6.2d Cir. R. 31.1.Show More To take another, Local Civil Rule 1.2 of the U.S. District Courts for the Southern and Eastern Districts of New York specifies that a “night depository with an automatic date stamp [shall] be maintained by the clerk of the Southern District in the Pearl Street Courthouse and by the clerk of the Eastern District in the Brooklyn and Central Islip Courthouses.”7 7.S.D. & E.D.N.Y. Loc. Civ. R. 1.2. One more example because we know that lawyers love fonts: a local rule from the Southern District of West Virginia requires motions and memoranda to be “clearly legible” and provides that “[t]he following fonts are presumed legible: Times New Roman, Courier New, Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.” S.D. W. Va. LR Civ P 7.1(a)(4).Show More

But, as it turns out, local rules also cover significant topics in myriad ways. Historically, debates over civil juries have at times sounded in local rulemaking.8 8.See, e.g., Colgrove v. Battin, 413 U.S. 149, 150 n.1 (1973) (discussing Montana Local Rule 13(d)(1), which the Court observed was similar in substance to the local rules of fifty-four other federal district courts).Show More Today, fights about case assignment invoke questions about local rules. Judge-shopping, such as the State of Texas’s preternatural ability to end up in front of Judge Matthew Kacsmaryk in recent years, is a practice permitted in many district courts because of local rules on case assignments.9 9.See Michael Hiltzik, Courts Finally Move to End Right-Wing Judge Shopping, But the Damage May Already Be Done, L.A. Times (Mar. 18, 2024, 2:11 PM), https://www.latimes.c‌om/business/story/2024-03-18/federal-courts-finally-put-the-kibosh-on-right-wing-judge-sho‌pping-but-the-damage-is-already-done; Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum. Hum. Rts. L. Rev. 297, 308–21 (2018); Katherine A. Macfarlane, Constitutional Case Assignment, 102 N.C. L. Rev. 977, 981–82, 1005–11 (2024).Show More Rules to channel “related cases” to certain district judges, potentially manipulated in the stop-and-frisk litigation, are creatures of local rules, too.10 10.See Marcel Kahan & Troy A. McKenzie, Judge Shopping, 13 J. Legal Analysis 341, 346, 358 n.29 (2021) (finding forty-six federal district courts with local related-case rules).Show More And there’s more. The Eastern District of Virginia gets its reputation as the “rocket docket” in part because of its highly aggressive local rules.11 11.See infra Subsection II.A.1.Show More For those interested in access to justice, there are roughly five hundred local rules related to pro se litigants in district courts, including ten districts with separate sections of their local rules addressing unrepresented litigants.12 12.Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691–92, 2705 (2022).Show More Consequential rules about class actions, summary judgment, and corporate disclosures are found in local rules as well.13 13.See infra Section II.A; infra Subsection III.B.4.Show More Meanwhile, in the courts of appeals, practices related to the use of “unpublished” (or non-precedential) opinions14 14.See, e.g., Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533, 535–36, 535 n.8 (2020).Show More—a sensitive subject over the years—are mostly left unregulated by the Federal Rules of Appellate Procedure.15 15.See Fed. R. App. P. 32.1(a) (simply permitting citation to unpublished opinions).Show More Instead, it is within many of the local rules that one can find details about when the appellate courts think an opinion should be “published” or not, and who can be part of that decision-making process.16 16.See infra Subsection II.A.2.Show More The same is true of other key moments in appellate litigation, including when briefs should be filed, when there should be oral argument, and when courts should rehear cases en banc.17 17.See infra Subsection II.A.2.Show More

Despite their importance, there has not been sustained scholarly attention on local rules.18 18.See infra note 20 (collecting sources, the most recent of which was published in 2015).Show More Much like local rules themselves, then, this Article seeks to fill gaps in, elaborate upon, and address previously unaddressed topics in the literature. We show in this Article that national and local rulemaking, like other systems of federalism, must accommodate national and local interests. And they typically do so, not by allowing one side to completely run over the other, but instead in a more grounded process that ebbs and flows over time. As in federalism, we can observe conflict and cooperation, though perhaps the most common outcome is somewhere in between. And this observation informs our normative judgments about local rules serving important functions in the middle layer between federal rules and individual judge practices.

To better understand local rules, Part I begins with a brief review of their history, starting at the beginning of the federal courts themselves and taking us to the present day. Part II then aims to provide an overview of what the thousands of local rules contain. Having surveyed these rules ourselves, we provide a descriptive account of the topics included in the local rules for the district and appellate courts. Many local rules exist within the federal rules—that is, they address topics also addressed at the national level, such as discovery, case management, and briefing. Others, though, are “outside” the federal rules. We identified and cataloged 1,089 civil district rules and 70 appellate rules of this type, addressing issues such as the regulation of the bar and the administration of the court. We then conclude Part II with a different way of understanding the content of local rules, by providing a taxonomy of local rules as they relate to federal rules. One distinction just mentioned is between rules inside and outside the federal rules. But there is further variation among local rules inside the federal rules: local rules can elaborate or build upon federal rules, and they can respond to federal rules that invite opt-outs or that create a floor or ceiling. Perhaps most surprisingly of all, local rules can contradict or duplicate federal rules.

Part III then considers the purposes of local rules. This work is informed not only by our review of thousands of local rules, but also by dozens of interviews with people involved in federal and local rulemaking. Specifically, we have conducted over fifty semi-structured interviews with judges, attorneys, law professors, and court personnel—making this the largest qualitative study on local rules to date. Our subjects include chairs, reporters, and members of the federal rulemaking committees, as well as chairs and members of local rules committees. These interviews helped us identify and distill several functions behind local rules, including a way to account for local needs and culture, a way to unify and codify judges’ practices, an opportunity to have laboratories of experimentation, and a means to attract and repel certain kinds of litigation.

Part IV then analyzes the findings of our study. We offer some observations about how well the purposes of local rules align with reality, and we suggest ways that local and federal rulemakers can do better. We argue that many of the key tensions within a federal system are alive and well within rulemaking, and it is a fool’s errand to try to formulate hard and fast rules about where there should be uniformity and where variation should be permitted. That said, we must acknowledge that the inter-court variation that comes from local rules is a tax on practitioners—and it is a tax that is not offset by conformity to state practice, which was uniformly rejected as a goal by the rulemakers we interviewed. But we also suggest that local rules must be viewed against a backdrop of local (and even judge-specific) procedures that will produce dis-uniformity whether a district adopts formal local rules or not. If local variation is inevitable, then local rules are perhaps the best way to make that variation transparent and open to outsiders. We also echo longstanding concerns about inconsistency and duplication, and we problematize claims of local needs and experimentation.19 19.We reserve for future work equally important questions about the process of making local rules, including a comprehensive study of the rulemaking apparatus of every district and circuit court as well as a mapping of the information flows among local and federal rulemakers. See generally Zachary D. Clopton & Marin K. Levy, Local Rulemaking, 75 Duke L.J. (forthcoming Feb. 2026).Show More

In sum, this Article aims to shed light on the rules that are playing an important role in governing litigation in the federal system and on the tradeoffs being made between uniformity and “local interests” that have brought us here.

  1.  We rely here on the version of the Federal Rules of Civil Procedure posted on the United States Courts website, https://www.uscourts.gov/rules-policies/current-rules-practice-proced‌ure/federal-rules-civil-procedure [https://perma.cc/76DE-SCGG] (last visited May 30, 2025). ↑
  2.  Federal Rules of Appellate Procedure, Admin. Off. of the U.S. Cts., https://www.uscourts.‌gov/rules-policies/current-rules-practice-procedure/federal-rules-appellate-procedure [https:/‌/perma.cc/Y3J9-BMWP] (last visited May 30, 2025). ↑
  3.  Fed. R. Civ. P. 83; Fed. R. App. P. 47; see also infra Part I (describing the origin of local rulemaking). ↑
  4.  See infra Part II. ↑
  5.  Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909, 913–15 (1990). ↑
  6.  2d Cir. R. 31.1. ↑
  7.  S.D. & E.D.N.Y. Loc. Civ. R. 1.2. One more example because we know that lawyers love fonts: a local rule from the Southern District of West Virginia requires motions and memoranda to be “clearly legible” and provides that “[t]he following fonts are presumed legible: Times New Roman, Courier New, Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.” S.D. W. Va. LR Civ P 7.1(a)(4). ↑
  8.  See, e.g., Colgrove v. Battin, 413 U.S. 149, 150 n.1 (1973) (discussing Montana Local Rule 13(d)(1), which the Court observed was similar in substance to the local rules of fifty-four other federal district courts). ↑
  9.  See Michael Hiltzik, Courts Finally Move to End Right-Wing Judge Shopping, But the Damage May Already Be Done, L.A. Times (Mar. 18, 2024, 2:11 PM), https://www.latimes.c‌om/business/story/2024-03-18/federal-courts-finally-put-the-kibosh-on-right-wing-judge-sho‌pping-but-the-damage-is-already-done; Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum. Hum. Rts. L. Rev. 297, 308–21 (2018); Katherine A. Macfarlane, Constitutional Case Assignment, 102 N.C. L. Rev. 977, 981–82, 1005–11 (2024). ↑
  10.  See Marcel Kahan & Troy A. McKenzie, Judge Shopping, 13 J. Legal Analysis 341, 346, 358 n.29 (2021) (finding forty-six federal district courts with local related-case rules). ↑
  11.  See infra Subsection II.A.1. ↑
  12.  Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691–92, 2705 (2022). ↑
  13.  See infra Section II.A; infra Subsection III.B.4. ↑
  14.  See, e.g., Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533, 535–36, 535 n.8 (2020). ↑
  15.  See Fed. R. App. P. 32.1(a) (simply permitting citation to unpublished opinions). ↑
  16.  See infra Subsection II.A.2. ↑
  17.  See infra Subsection II.A.2. ↑
  18.  See infra note 20 (collecting sources, the most recent of which was published in 2015). ↑

  19.  We reserve for future work equally important questions about the process of making local rules, including a comprehensive study of the rulemaking apparatus of every district and circuit court as well as a mapping of the information flows among local and federal rulemakers. See generally Zachary D. Clopton & Marin K. Levy, Local Rulemaking, 75 Duke L.J. (forthcoming Feb. 2026). ↑

The Fourth Amendment’s Hidden Intrusion Doctrine

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This Article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seeks to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This Article demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In doing so, I bring to light the Supreme Court’s “hidden intrusion doctrine.”

By failing to explicitly state that the degree of intrusion is a factor in the probable cause analysis, the Supreme Court injects ambiguity that has many consequences. Some lower courts and law enforcement agencies already balance the quantum or quality of evidence with the severity of intrusion, even without explicit Supreme Court guidance, but others do not. The ambiguity in the doctrine therefore fosters inconsistency and expands police discretion. Moreover, as technological advancements from facial recognition to digital searches reshape investigative techniques, the need for a clear articulation of the probable cause standard is increasingly urgent.

This Article suggests both doctrinal and policy-based proposals that would bring the Supreme Court’s intrusion doctrine out of the shadows and require deliberate consideration of the degree of intrusion in probable cause determinations. Such an approach would preserve law enforcement flexibility while safeguarding individual rights amidst evolving technological landscapes.

Introduction

In 2022, Alonzo Sawyer was arrested after facial recognition software generated a list of potential matches to surveillance images of a man who had recently assaulted a bus driver.1 1.Eyal Press, Does A.I. Lead Police to Ignore Contradictory Evidence?, New Yorker (Nov. 13, 2023), https://www.newyorker.com/magazine/2023/11/20/does-a-i-lead-police-to-ignore-contradictory-evidence.Show More Using the facial recognition software as the basis for probable cause, police arrested Mr. Sawyer and detained him for approximately a week with hardly any other investigation.2 2.Id.Show More After all, the image and software created a nexus between Mr. Sawyer and the crime. There was no question that the person depicted in the surveillance footage was the assailant.

The problem is that Mr. Sawyer was not the person in the image. After police arrested Mr. Sawyer, officers conducted several less invasive investigatory steps: police visited the house where he had been staying to search the premises for the clothing the assailant had been wearing in the surveillance photo and found nothing.3 3.Id.Show More They interviewed his relatives, who confirmed Mr. Sawyer’s alibi that he had been at home many miles away at the time of the assault.4 4.Id. Police also showed the surveillance photograph from the assault to Mr. Sawyer’s probation officer, who at first said he believed the photo was of Mr. Sawyer. Id. The probation officer, however, was told before he made the identification that Mr. Sawyer had been identified by facial recognition. Id. In addition, he had only met Mr. Sawyer wearing a COVID pandemic-era mask. Id. The probation officer later questioned his own identification and reached out to police to say that he had changed his mind—he no longer thought the surveillance image depicted Mr. Sawyer. Id.Show More These actions were not only far less intrusive than arresting Mr. Sawyer; they also revealed that the facial recognition software had been wrong.

Mr. Sawyer’s arrest turned on the definition of probable cause. Police used a match from new, relatively untested software to justify his arrest and detention for several days. Was that evidence enough to meet the probable cause standard to deprive him of his liberty, arguably the most severe intrusion implicated by the Fourth Amendment? What would have happened if police had been required to investigate further using less intrusive methods before arresting Mr. Sawyer? Could his week in jail have been avoided? Does the law require such an intermediate investigation when the only evidence is from new, untested technology?

This Article examines these questions through the lens of the Fourth Amendment’s probable cause standard, challenging the predominant understanding that the same quality or quantum of evidence—the evidentiary inputs—can satisfy the standard regardless of the degree of intrusion police want to exercise. The term probable cause comes directly from the text of the Fourth Amendment, which requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”5 5.U.S. Const. amend. IV (emphasis added).Show More Drawing on this text, probable cause has become the standard6 6.In this Article, I focus only on the Fourth Amendment intrusions that rely on probable cause to demonstrate how that analysis also includes the degree of intrusion, even though the Supreme Court does not explicitly acknowledge it as it does in the reasonable suspicion context. There are other types of search and seizure that do not require probable cause, such as searches incident to a lawful arrest, inventory searches, and sobriety checkpoints, which are not justified by any degree of suspicion that a specific person has committed a crime, see infra notes 16, 69, 104 and accompanying text, and so-called Terry stops, which are supported by reasonable suspicion, a lower standard than probable cause. See infra note 37.Show More by which law enforcement can, while investigating a crime, conduct three separate and distinct actions that implicate individuals’ privacy or liberty interests7 7.Law enforcement may also collect evidence through many different types of actions that require little, if any, individualized suspicion that evidence will be found in a particular place. See, e.g., United States v. Tuggle, 4 F.4th 505, 510–11 (7th Cir. 2021); Smith v. Maryland, 442 U.S. 735, 745–46 (1979); 18 U.S.C. § 2703(d) (allowing disclosure of certain electronic communications based on the government’s representation that records are “relevant and material to an ongoing criminal investigation”). Nevertheless, as discussed elsewhere in this Article, the probable cause standard is required for many of the actions law enforcement conduct that most deeply intrude into individuals’ privacy. See infra Section I.A.Show More: arrest,8 8.See, e.g., Maryland v. Pringle, 540 U.S. 366, 368 (2003). Notably, police do not need a warrant to arrest someone in public, as long as the arrest is based on probable cause. United States v. Watson, 423 U.S. 411, 423–24 (1976).Show More search of a constitutionally protected area,9 9.See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1983).Show More and seizure of evidence.10 10.See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). Probable cause is also the standard for many other iterations of these basic intrusions. See infra notes 20–25 and accompanying text.Show More

Most scholars would say that the same standard of probable cause applies11 11.See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.3(a), at 118 n.8 (4th ed. 2015) (“Thus, in Spinelli v. United States, 393 U.S. 410 . . . (1969), where the issue was whether the challenged search warrant had been issued on probable cause, the Court found its earlier decision in Draper v. United States, 358 U.S. 307 . . . (1959), involving grounds to arrest, to be a ‘suitable benchmark’ for resolving that issue. Similarly, Illinois v. Gates, 462 U.S. 213 . . . (1983), which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well. State v. Schroeder, 450 N.W.2d 423 (N.D. 1990).”). The treatise authors note that the question of “probable cause of what” will differ in various contexts, but the general quantum of evidence and the analysis is the same. Id. § 3.3(a). See also Craig S. Lerner, The Reasonableness of Probable Cause, 81 Tex. L. Rev. 951, 953–54 (2003) (“[P]robable cause is widely viewed in the legal community as a fixed standard.”).Show More regardless of whether police wanted to get a warrant for Mr. Sawyer’s phone records or arrest him. I argue that the law requires more, or stronger, evidence to justify a greater intrusion into an individual’s privacy or liberty than the evidence necessary to justify a lesser intrusion. Under such an approach, for example, the facial recognition match might, alone, provide probable cause to obtain phone records, but not to arrest Mr. Sawyer and deprive him of his liberty.

In this Article I show that, contrary to widespread assumptions, the Supreme Court has implicitly acknowledged that whether probable cause exists to justify any given search or seizure depends in part on the degree of intrusion the particular search or seizure entails. For example, the Court has required more or stronger evidence to justify the search of a home or a custodial arrest than it has for the search of a car, even though “probable cause” is the standard for all three. But the assumption that the degree of intrusion does not factor into the totality of the circumstances12 12.See Gates, 462 U.S. at 246.Show More test used to evaluate probable cause is understandable because the Supreme Court has failed to say so explicitly. This Article identifies and defines these considerations in what I term the Fourth Amendment’s “hidden intrusion” doctrine.

The Supreme Court’s vagueness on its intrusion doctrine and the ensuing failure of lower courts and law enforcement to consistently consider the degree of intrusion in determining whether probable cause exists have injected ambiguity that has many consequences,13 13.See Section I.C.Show More including arrests like Mr. Sawyer’s. It allows police to proceed less cautiously, moving straight to an arrest without any intermediate investigation. It gives cover to police who arrest when they could first search to confirm their suspicions, and it allows them to conduct a more intrusive search when a less intrusive search would suffice. It insulates police decision-making from judicial review and civil liability. It sows confusion for trial courts applying the probable cause standard, for judges reviewing warrant applications, and for officers on the street trying to conduct police work that comports with the Fourth Amendment. It undermines transparency and consistency in the application of the probable cause standard. It generally expands police power.

Though some scholars have argued that balancing the quantum or quality of evidence collected by police with the degree of intrusion involved in a search or seizure should be part of the Fourth Amendment analysis,14 14.See Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John’s L. Rev. 1053, 1053–54 (1998) [hereinafter Slobogin, Let’s Not Bury Terry] (“That framework, which I call the proportionality principle, is very simple: A search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action.”); Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1343 (2020). Over thirty years ago, Christopher Slobogin recognized the value of incorporating the degree of intrusion into search and seizure analysis in his article imagining how the government would consider a search and seizure doctrine if the Fourth Amendment did not exist. See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 49–50 (1991) [hereinafter Slobogin, The World Without a Fourth Amendment]. Slobogin argued that the “proportionality principle” was not part of existing Fourth Amendment doctrine but represented the proper balance of interests between the State and the populace. Id. (“Put another way, because the cost to individual interests of a mistake by the police is greatest when the intrusion is greatest, and diminishes as the intrusion lessens, the tolerance for such mistakes should vary inversely with the level of intrusion. Note further that the cost to the state of a police mistake is also greatest when the intrusion is greatest, because the public is more likely to perceive unnecessary police intrusions as illegitimate when they are significant.” (emphasis omitted)). This Article argues that Slobogin’s “proportionality principle” is already being applied by the courts, even if it has never been explicitly incorporated into Fourth Amendment doctrine.Show More this Article is the first to argue that such balancing is already part of the jurisprudence. The common, unitary understanding of probable cause—that one should entirely ignore the degree of intrusion in deciding whether probable cause exists to justify a particular search or seizure—misapplies important nuances in Supreme Court doctrine.

In addition, I show that there is no need for the Supreme Court’s intrusion doctrine to remain hidden and that bringing it to light would increase transparency and consistency in decisions made by lower courts and law enforcement. There is in fact broad understanding among system actors that the degree of intrusion is relevant in evaluating whether a search or seizure is justified. Some courts and police are already doing such balancing on an ad hoc basis,15 15.See infra Section II.A.Show More requiring more evidence to justify the search of a home than a car, or to justify a search of someone’s crotch than less private parts of their body. But without guidance from the Supreme Court sanctioning such consideration, they are merely acting on the instinct that the degree of intrusion should be part of the search and seizure calculus. The result is a hodgepodge legal doctrine of probable cause that rarely discusses degree of intrusion, even if it is implicitly part of the analysis. Police and judges are left with no coherent limiting principle—some follow their instinct that more or more reliable evidence should be necessary to justify a greater intrusion into individuals’ privacy, but others do not.

An examination of how the police apply the probable cause standard in two areas of emerging technology provides useful case studies for the necessity of a clear intrusion doctrine. As untested technologies, like the facial recognition technology used in Mr. Sawyer’s case, are used to develop leads that then justify searches, seizures, and arrests, courts and police need guidance to help understand how new technologies should be used in the probable cause analysis. A clear intrusion doctrine would guide courts and policy-makers as they respond to an ever-changing technological law enforcement landscape, providing guardrails that protect citizens from undiscovered flaws in new technology while still allowing law enforcement agencies to use new technology. An explicit understanding of how the degree of intrusion applies in the probable cause analysis would encourage police to tread carefully with untested technology. It would encourage them to search before they arrest and to minimize harm from unanticipated errors.

Likewise, bringing the Supreme Court’s hidden intrusion doctrine into the light—by making clear that whether probable cause exists depends in part on the degree of intrusion of a particular search or seizure—could help solve the vexing problems around seizure and search of cell phones. As with any physical evidence they seize in an investigation, police must generally have probable cause to seize a cell phone that they believe contains evidence of a crime.16 16.See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). There are some limited circumstances in which the seizure of physical evidence need not be based on probable cause, such as in the course of an inventory search. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987).Show More As the Supreme Court recognized in Riley v. California, “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”17 17.Riley v. California, 573 U.S. 373, 403 (2014).Show More Police may have reason to believe that some particular type of evidence may be stored in a cell phone, but does that give them license to search every part of the phone? And if it does, should it? Courts authorizing search warrants have grappled with this question and have come to differing opinions on whether the same evidence to seize a phone or search part of it would justify a search of the entire phone.18 18.See infra notes 239–41.Show More Recognition of the Fourth Amendment’s hidden intrusion doctrine would help resolve this tension, requiring more evidence to justify a search of a phone than a seizure of a phone.

In a world in which emerging technologies like facial recognition technology are implemented quickly, often before any meaningful analysis of their reliability or risks, or where such technologies allow police to glean an entirely different degree of information about individuals’ private lives as done through phone searches, courts and policy-makers should be willing to move more slowly. This Article argues that in light of the Supreme Court’s hidden intrusion doctrine, they must move more slowly, and it proposes an approach that I call “graduated probable cause.” Under this approach, to comply with the (previously hidden, now explicit) intrusion doctrine, police would have to collect more or stronger evidence to justify greater intrusions like an arrest or a search of a home. If they had less evidence, or less reliable evidence, they could conduct a lesser intrusion, such as the search of a car or seizure of a cell phone, as an intermediate step. Such a process would maintain law enforcement flexibility, but also protect individuals’ privacy and liberty interests in the face of a constantly changing technological landscape.

This Article proceeds in four Parts. In Part I, I provide an overview of probable cause, examining both how the Supreme Court has defined the standard and how previous scholars have attempted to untangle that messy doctrine, to illustrate that Supreme Court probable cause precedent already implicitly considers the degree of intrusion a particular search or seizure makes into an individual’s privacy or liberty. In Part II, I examine case law from lower federal courts and state courts to demonstrate how, despite broad statements about a unitary standard, courts have already drawn distinctions in practice about the quantum of evidence necessary to provide probable cause based on the degree of intrusion. I also demonstrate how police trainings and policies can either reinforce the idea of a unitary standard to preserve police discretion or provide a model demonstrating the workability of a probable cause analysis that does include consideration of the degree of intrusion. In Part III, I examine in depth the case studies of facial recognition software and phone searches to demonstrate the confusion created by a unitary probable cause standard and the ways in which explicit consideration of the degree of intrusion could improve probable cause analysis in a rapidly changing digital environment. In Part IV, I articulate possible doctrinal and policy solutions for rearticulating the probable cause standard based on the degree of intrusion. Acknowledging that the degree of intrusion is already implicitly part of the analysis, I argue for explicitly incorporating it into the totality of the circumstances analysis that courts already apply. In other words, the courts do not need a new framework; they just need to honestly articulate the interest balancing that already drives decisions. I also set forth policy proposals for police, based on a graduated approach to investigation already endorsed by some law enforcement agencies, that would direct police to first conduct less intrusive searches and seizures in circumstances where they are relying on less, or less reliable, evidence.

  1.  Eyal Press, Does A.I. Lead Police to Ignore Contradictory Evidence?, New Yorker (Nov. 13, 2023), https://www.newyorker.com/magazine/2023/11/20/does-a-i-lead-police-to-ignore-contradictory-evidence. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Id. Police also showed the surveillance photograph from the assault to Mr. Sawyer’s probation officer, who at first said he believed the photo was of Mr. Sawyer. Id. The probation officer, however, was told before he made the identification that Mr. Sawyer had been identified by facial recognition. Id. In addition, he had only met Mr. Sawyer wearing a COVID pandemic-era mask. Id. The probation officer later questioned his own identification and reached out to police to say that he had changed his mind—he no longer thought the surveillance image depicted Mr. Sawyer. Id. ↑
  5.  U.S. Const. amend. IV (emphasis added). ↑
  6.  In this Article, I focus only on the Fourth Amendment intrusions that rely on probable cause to demonstrate how that analysis also includes the degree of intrusion, even though the Supreme Court does not explicitly acknowledge it as it does in the reasonable suspicion context. There are other types of search and seizure that do not require probable cause, such as searches incident to a lawful arrest, inventory searches, and sobriety checkpoints, which are not justified by any degree of suspicion that a specific person has committed a crime, see infra notes 16, 69, 104 and accompanying text, and so-called Terry stops, which are supported by reasonable suspicion, a lower standard than probable cause. See infra note 37. ↑
  7.  Law enforcement may also collect evidence through many different types of actions that require little, if any, individualized suspicion that evidence will be found in a particular place. See, e.g., United States v. Tuggle, 4 F.4th 505, 510–11 (7th Cir. 2021); Smith v. Maryland, 442 U.S. 735, 745–46 (1979); 18 U.S.C. § 2703(d) (allowing disclosure of certain electronic communications based on the government’s representation that records are “relevant and material to an ongoing criminal investigation”). Nevertheless, as discussed elsewhere in this Article, the probable cause standard is required for many of the actions law enforcement conduct that most deeply intrude into individuals’ privacy. See infra Section I.A. ↑
  8.  See, e.g., Maryland v. Pringle, 540 U.S. 366, 368 (2003). Notably, police do not need a warrant to arrest someone in public, as long as the arrest is based on probable cause. United States v. Watson, 423 U.S. 411, 423–24 (1976). ↑
  9.  See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1983). ↑
  10.  See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). Probable cause is also the standard for many other iterations of these basic intrusions. See infra notes 20–25 and accompanying text. ↑
  11.  See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.3(a), at 118 n.8 (4th ed. 2015) (“Thus, in Spinelli v. United States, 393 U.S. 410 . . . (1969), where the issue was whether the challenged search warrant had been issued on probable cause, the Court found its earlier decision in Draper v. United States, 358 U.S. 307 . . . (1959), involving grounds to arrest, to be a ‘suitable benchmark’ for resolving that issue. Similarly, Illinois v. Gates, 462 U.S. 213 . . . (1983), which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well. State v. Schroeder, 450 N.W.2d 423 (N.D. 1990).”). The treatise authors note that the question of “probable cause of what” will differ in various contexts, but the general quantum of evidence and the analysis is the same. Id. § 3.3(a). See also Craig S. Lerner, The Reasonableness of Probable Cause, 81 Tex. L. Rev. 951, 953–54 (2003) (“[P]robable cause is widely viewed in the legal community as a fixed standard.”). ↑
  12.  See Gates, 462 U.S. at 246. ↑
  13.  See Section I.C. ↑
  14.  See Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John’s L. Rev. 1053, 1053–54 (1998) [hereinafter Slobogin, Let’s Not Bury Terry] (“That framework, which I call the proportionality principle, is very simple: A search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action.”); Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1343 (2020). Over thirty years ago, Christopher Slobogin recognized the value of incorporating the degree of intrusion into search and seizure analysis in his article imagining how the government would consider a search and seizure doctrine if the Fourth Amendment did not exist. See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 49–50 (1991) [hereinafter Slobogin, The World Without a Fourth Amendment]. Slobogin argued that the “proportionality principle” was not part of existing Fourth Amendment doctrine but represented the proper balance of interests between the State and the populace. Id. (“Put another way, because the cost to individual interests of a mistake by the police is greatest when the intrusion is greatest, and diminishes as the intrusion lessens, the tolerance for such mistakes should vary inversely with the level of intrusion. Note further that the cost to the state of a police mistake is also greatest when the intrusion is greatest, because the public is more likely to perceive unnecessary police intrusions as illegitimate when they are significant.” (emphasis omitted)). This Article argues that Slobogin’s “proportionality principle” is already being applied by the courts, even if it has never been explicitly incorporated into Fourth Amendment doctrine. ↑
  15.  See infra Section II.A. ↑
  16.  See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). There are some limited circumstances in which the seizure of physical evidence need not be based on probable cause, such as in the course of an inventory search. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987). ↑
  17.  Riley v. California, 573 U.S. 373, 403 (2014). ↑
  18.  See infra notes 239–41. ↑

Free Speech, Breathing Space, and Liability Insurance

An important piece of the “speech-tort” picture has been almost completely missing from doctrinal and policy analysis: the role played by liability insurance in protecting speech. In New York Times Co. v. Sullivan, the Supreme Court began adopting First Amendment restrictions on liability for defamation and the other speech torts—false light, intentional infliction of emotional distress, and public disclosure of private information. The Court’s purpose was to create “breathing space” for valuable speech by precluding liability for some speech that has no constitutional value in itself.

However, there is a little-known but highly important liability insurance regime that also affords breathing space, more broadly than the constitutional rules, by insuring against liability for unprotected speech and the costs of defending virtually all speech-tort suits, regardless of their validity. There have been decades of extensive legal scholarship about the First Amendment’s restrictions on speech-tort liability. Yet this scholarship has largely ignored the fact that all the liability for the speech torts that the First Amendment does permit can be, and often is, covered by liability insurance. In addition, Supreme Court Justices Thomas and Gorsuch recently have separately criticized existing constitutional limitations on liability for defamation as too broad without any mention of the widespread existence and availability of insurance protecting against liability for defamation. The Justices’ criticisms of defamation law have garnered a lot of attention and a barrage of responses, which have also omitted any reference to the possible relevance and significance of liability insurance to the debate about the proper scope of liability for defamation.

This Article takes insurance against speech-tort liability out of the shadows, bringing First Amendment theory and doctrine into the orbit of thinking about liability insurance and its operation in practice. The Article identifies and analyzes the sources and scope of the coverage that insurance provides against speech-tort liability, combining insights about the complex and intertwined consequences of the threat of speech-tort liability with what we know about how liability insurance both creates breathing space and attempts to mitigate excess risk-taking by those who are insured. The Article argues that, whether the end result is to change the law or simply to provide a firmer and more knowledgeable foundation for maintaining the law as it now stands, proponents of reform should either invoke the availability of liability insurance in support of their position or explain why their analyses ignore it. And opponents of reform should explain why they maintain their support of the status quo in spite of the availability of liability insurance. Finally, the Article considers the relevance of liability insurance to different theories of tort liability and analyzes the principal possible alternative to the current constitutional limits on liability, a negligence standard, concluding that such a standard would have considerable deficiencies.

Introduction

The proper scope of liability for defamation—impugning the reputation of an individual or organization—has become a salient public issue. The First Amendment provides considerable protection against liability for defamation (and certain other speech-related torts)1 1.As I explain below, these torts are false light, intentional infliction of emotional distress (“IIED”), and public disclosure of private facts. See infra Section II.A.Show More in order to provide “breathing space”2 2.See infra Section II.B.Show More—an extra margin of protection designed to ensure that free speech is not unduly deterred by the threat of liability.3 3.See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L.Rev. 1633, 1636–37 (2013) (explaining that protecting negligent false statements from liability provides constitutional “breathing space”); Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 710–18 (1978) (describing the role of a constitutional “buffer zone” in minimizing the chilling of protected activities).Show More Regardless of these protections, there are still suits for defamation, brought not only by private individuals, but also by, and against, public officials and public figures.4 4.See, e.g., US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002 (Del. Super. Ct. 2023) (voting machine manufacturer against a television broadcaster based on conduct of various news anchors). The parties later reached a settlement for $787.5 million. David Folkenflik & Mary Yang, Fox News Settles Blockbuster Defamation Lawsuit with Dominion Voting Systems, NPR (Apr. 18, 2023, 4:35 PM), https://www.npr.org/2023/04/18/117033911‌4/fox-news-settles-blockbuster-defamation-lawsuit-with-dominion-voting-systems [https://p‌erma.cc/DTD5-TLCE]. See generally Freeman v. Giuliani, 691 F. Supp. 3d 32 (D.D.C. 2023) (election workers against a media personality), judgment entered, No. 21-cv-03354, 2023 WL 9783148 (D.D.C. Dec. 18, 2023), appeal dismissed, No. 24-7021, 2025 WL 634800 (D.C. Cir. Feb. 26, 2025); Carroll v. Trump (Carroll I), No. 20-cv-07311, 2024 WL 97359 (S.D.N.Y. Jan. 9, 2024) (writer against Donald Trump); Carroll v. Trump (Carroll II), No. 22-cv-10016, 2023 WL 3000562 (S.D.N.Y. Mar. 20, 2023) (same); Depp v. Heard, No. CL-2019-0002911, 2022 WL 2342058 (Va. Cir. June 24, 2022) (actor against another actor).Show More These suits receive high-profile attention. Such suits often not only seek personal vindication and compensation for reputational harm, but today, they also figure in the political process; they are moves in a larger set of thrusts and parries occurring outside the direct confines of tort litigation. But the law of defamation should be a law for all seasons, not one bent to suit transient political passions.

Into this picture have come two Justices of the Supreme Court. In judicial opinions, Justice Thomas and Justice Gorsuch have separately criticized existing constitutional limitations on liability for defamation as too broad, Justice Thomas on originalist grounds5 5.McKee v. Cosby, 139 S. Ct. 675, 675–76 (2019) (Thomas, J., concurring in the denial of certiorari).Show More and Justice Gorsuch because of the quick and easy harm to reputation that can occur in the world of digital media.6 6.Berisha v. Lawson, 141 S. Ct. 2424, 2427–28 (2021) (Gorsuch, J., dissenting from the denial of certiorari).Show More Both Justices contend, in effect, that the Constitution should authorize more liability for defamation than it currently permits. In response, a number of established First Amendment scholars have defended existing precedent,7 7.See, e.g., Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 96–97, 158–60 (2021) (critiquing Justice Thomas’s and Justice Gorsuch’s historical analyses and arguing that overturning Sullivan would have a chilling effect on the speech of news organizations); Lili Levi, Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth,” 57 U. Rich. L. Rev. 1235, 1285–87 (2023) (arguing that Justice Thomas’s historical justification for dispensing with Sullivan is inadequate and that Justice Gorsuch’s concerns about disinformation online are narrow compared to the sweeping effects that reconsidering Sullivan could have on free speech); Matthew L. Schafer & Jeff Kosseff, Protecting Free Speech in a Post-Sullivan World, 75 Fed. Commc’ns L.J. 1, 35–36 (2022) (questioning Justice Thomas’s use of the “PizzaGate” conspiracy theory as an example in favor of loosening liability standards, noting that the theory was spread by anonymous posters on message boards, actors for whom there would likely be little effective legal consequence); Lyrissa Lidsky, Untangling Defamation Law: Guideposts for Reform, 88 Mo. L. Rev. 663, 676 (2023) (arguing that reconsidering Sullivan would likely not have a substantial effect on the disinformation Justice Gorsuch is most concerned with, which does not usually come from mainstream news organizations).Show More and one of the country’s leading organizations supporting media rights has issued a 196-page white paper seeking to demonstrate that reform of existing limits on liability is unnecessary and ill-advised.8 8.See generally Media L. Res. Ctr., New York Times v. Sullivan: The Case for Preserving an Essential Precedent (2022) [hereinafter MLRC], https://medialaw.org/wp-content/uploads/20‌23/01/nytsullivanwhitepaper.pdf [https://perma.cc/B7L4-UH3T].Show More

The two Supreme Court Justices, as well as the First Amendment scholars and media-support organizations opposing them, however, are guilty of a significant analytical and practical omission. They have failed to recognize that the media, other kinds of organizations, and most individuals have, or can obtain,9 9.It is probably the case that some small media organizations cannot easily obtain, or cannot easily afford, Media Liability insurance, although I have found no quantitative data confirming this. See, e.g., Christina Koningisor & Lyrissa Lidsky, First Amendment Disequilibrium, 110 Va. L. Rev. 1, 29–31 (2024) (discussing the financial pressures that media organizations face); Elise Czajkowski, Why Media Liability Insurance Is Key to Making Sure Your Newsroom Continues to Exist, Inst. for Nonprofit News, https://inn.org/research/case-studies/why-media‌-liability-insurance-is-key-to-making-sure-your-newsroom-continues-to-exist/ [https://perma‌.cc/5D47-K9Z9] (last visited Apr. 3, 2025) (recounting difficulties and costs small media organizations face in connection with defamation suits and insurance).Show More insurance against liability for defamation and other speech-related torts.10 10.The MLRC white paper does include a half-sentence reference to “rising libel insurance rates.” Richard Tofel & Jeremy Kutner, A Response to Justice Gorsuch, in MLRC, supra note 8, at 79, 83.Show More Alongside the constitutional regime affording breathing space for the exercise of protected free-speech rights, then, there is a little-known liability insurance regime that also affords breathing space for speech and provides broader protection than what the Constitution provides. It does so by indemnifying speakers against liability not only for harm caused by unprotected speech but also for the cost of defending against suits alleging liability for speech that turns out to have been protected or not to have been tortious.11 11.See infra Section II.A.Show More That is, liability insurance provides protection against liability that the First Amendment permits, as well as the cost of defending against alleged liability. It also supplements the protection the Constitution provides by covering the legal costs that speakers would otherwise incur when they are sued and the speakers win.

What if you analyzed the impact of tort liability on the quality of medical care without taking into account the fact that health care providers typically are protected against liability by malpractice insurance?12 12.For work that addresses this issue, see generally Tom Baker, The Medical Malpractice Myth (2005); Frank A. Sloan, Randall R. Bovbjerg & Penny B. Githens, Insuring Medical Malpractice (1991); Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (1993).Show More What if you analyzed how the threat of liability for causing an automobile accident affects driving behavior without ever considering that liability insurance pays for virtually all individuals’ automobile liability?13 13.See Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 102–03 (2008) (illustrating how the ubiquity of automobile insurance has slowed automobile liability reform);Tom Baker, Liability Insurance as Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law in Action,12 Conn. Ins. L.J. 1, 11–12 (2005) (explaining the role of liability insurance in shaping tort doctrine); Nora Freeman Engstrom,Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 815–16 (2011) (discussing how no-fault liability insurance could reshape tort law).Show More You would properly be thought to have ignored an important ingredient of any sensible analysis.14 14.See Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165, 2169 (2024).Show More

Yet the constitutional theory of breathing space takes no account of the role that insurance against liability for defamation and other speech-related torts plays in the operation of free speech in theory and in practice. In fact, there have been decades of extensive legal scholarship and constitutional litigation about the First Amendment’s restrictions on speech-tort liability. Most of this scholarship, and the courts, have wholly ignored the fact that all of the liability for the speech torts that the First Amendment does permit can be and often is covered by liability insurance.15 15.There have been at most a few dozen passing references to libel insurance in the law review literature over the decades, but almost no actual discussion of its significance. It would take too much detail to systematically prove this negative. A glance at two of the major First Amendment law casebooks, however, provides some confirmation. There is nothing in the table of contents or the index of either that refers to “insurance” or “liability insurance,” and nothing in the text of either that I can find that mentions these subjects. See generally Noah R. Feldman & Kathleen M. Sullivan, First Amendment Law (8th ed. 2023); Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (4th ed. 2012). I have been able to find only two brief but actual discussions of defamation liability insurance in the law review literature, the most recent of them more than thirty years old. See Frederick Schauer, Uncoupling Free Speech, 92 Colum. L. Rev. 1321, 1339–43 (1992); Marc A. Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F. L. Rev. 1, 18–22 (1983). And roughly thirty-five years ago, part of one chapter in a book of essays made reference to and analyzed “trends in insurance premiums.” See Henry R. Kaufman, Trends in Damage Awards, Insurance Premiums, and the Cost of Media Libel Litigation, in The Cost of Libel: Economic and Policy Implications 1, 11–15 (Everette E. Dennis & Eli M. Noam eds., 1989).Show More As we will see below, how this all takes place is not an entirely simple matter, but it is not rocket science either. Courts and commentators should be able to understand it. In any event, its technicality and complexity are not a justification for ignoring it.

Whether the existing constitutional limits on liability for defamation and the other speech torts should be maintained is a multilayered issue that I do not claim, or even aim, to definitively resolve here.16 16.For a recent argument that the protections provided to public figures should be reduced, see generally G. Edward White, Reconsidering the Legacy of New York Times v. Sullivan, 23 First Amend. L. Rev. 1 (2024).Show More The principal purpose of this Article is to give analysts and policymakers more sophisticated tools to employ in addressing that issue, though I also make some points regarding the difficulties that would be encountered if liability based on negligence were permitted across the board. My contention is not that the newly realized availability of liability insurance should necessarily make a difference in speech-tort law at the retail level, doctrine by doctrine. Rather, I contend that the invocation of breathing-space concerns in constitutional law, in common law adjudication, and in public debate should be influenced by the recognition that not only constitutional protections against liability, but also liability insurance, provide breathing space for speech.

My message, then, is that those who subscribe to Justice Gorsuch’s position that proving actual malice, in practice, is too high a hurdle for defamation plaintiffs to overcome should either be invoking the availability of liability insurance in favor of their position or explaining why they are not doing so. And those who oppose that position and favor maintaining current First Amendment protections against liability should be explaining why they take this position, notwithstanding the breathing space that liability insurance provides.

In short, in light of the findings about liability insurance that I set out below, it seems clear that any analysis of First Amendment or tort liability issues that turns at least in part on breathing-space concerns should take the operation of liability insurance into account. I show how that can be done. Although liability insurance does not provide blanket protection, it is still a source of substantial breathing space. In addition, I explain why, at this point, we could use a much more complete understanding of the quantitative side of the issues that are relevant to the kind of analysis I am proposing. But we should not wait for perfect information about the incidence of insurance protection against speech-tort liability before taking the availability of this insurance into account. We should go with what data we have now. That is what I do here.

Part I identifies and analyzes the sources and scope of the coverage that insurance provides against speech-tort liability. Such insurance may be known to exist by a few judges and First Amendment scholars, but based on my own informal surveys, the availability, scope, and distribution of such insurance are only dimly understood at most. Perhaps even more surprising, insurance law scholars themselves (again, based on my own informal surveys) also have little awareness or understanding of the scope of speech-tort liability insurance. It is little wonder that there has been no scholarship integrating the two fields; the subject is largely opaque to most scholars in both.

Part II briefly identifies the elements of the traditional common law rules governing four speech torts—defamation, the main such tort, as well as false light, intentional infliction of emotional distress (“IIED”), and public disclosure of private facts—and also examines the particular restrictions on the scope of these liabilities that the Supreme Court has ruled apply to them as a matter of First Amendment law. The focus of this Part is not only the two sets of liability rules, but also what we know (and do not know) about suits and outcomes in speech-tort litigation, for most suits do not go all the way to verdict and judgment. This Part delineates the forms of speech-tort liability that are now precluded and those that remain constitutionally valid, which is an important step in the analysis, because the distinction between the two categories marks the boundary between the domains of constitutional protection from speech-tort liability and potential liability insurance indemnity against speech-tort liability.

Part III constitutes an effort to intervene in the two fields by combining insights about the complex and intertwined consequences of the threat of speech-tort liability with what we know about how liability insurance both creates moral hazard and attempts to neutralize it. This Part thereby identifies for the first time the critical issues for the integrated field. The results can be considered a benchmark in the development of an integrated theory of the relation between free speech, breathing space, and liability insurance. It also provides a sharpened understanding of the manner in which these fields operate together in practice.

Finally, now that liability insurance has come out of the shadows, Part IV first considers the normative relevance of liability insurance to analysis of the speech torts. This Part argues that, regardless of the other debates in torts scholarship about “rights theory” versus consequentialism, in the field of speech torts, the consequentialist conception must prevail. This is because ensuring breathing space for speech is the most consequentialist of purposes. Second, this Part takes a look at what standard could then replace actual malice. It turns out that the alternatives—especially a negligence standard—have significant disadvantages. This insight suggests that evaluating the full mix of considerations relevant to the issue, including the availability of liability insurance, does not lead to a definitive conclusion, but only to a more sophisticated analysis of the advantages and disadvantages of the approach that has now been in place for over fifty years.

  1.  As I explain below, these torts are false light, intentional infliction of emotional distress (“IIED”), and public disclosure of private facts. See infra Section II.A. ↑
  2.  See infra Section II.B. ↑
  3.  See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L.

    Rev. 1633, 1636–37 (2013) (explaining that protecting negligent false statements from liability provides constitutional “breathing space”); Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 710–18 (1978) (describing the role of a constitutional “buffer zone” in minimizing the chilling of protected activities). ↑

  4.  See, e.g., US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002 (Del. Super. Ct. 2023) (voting machine manufacturer against a television broadcaster based on conduct of various news anchors). The parties later reached a settlement for $787.5 million. David Folkenflik & Mary Yang, Fox News Settles Blockbuster Defamation Lawsuit with Dominion Voting Systems, NPR (Apr. 18, 2023, 4:35 PM), https://www.npr.org/2023/04/18/117033911‌4/fox-news-settles-blockbuster-defamation-lawsuit-with-dominion-voting-systems [https://p‌erma.cc/DTD5-TLCE]. See generally Freeman v. Giuliani, 691 F. Supp. 3d 32 (D.D.C. 2023) (election workers against a media personality), judgment entered, No. 21-cv-03354, 2023 WL 9783148 (D.D.C. Dec. 18, 2023), appeal dismissed, No. 24-7021, 2025 WL 634800 (D.C. Cir. Feb. 26, 2025); Carroll v. Trump (Carroll I), No. 20-cv-07311, 2024 WL 97359 (S.D.N.Y. Jan. 9, 2024) (writer against Donald Trump); Carroll v. Trump (Carroll II), No. 22-cv-10016, 2023 WL 3000562 (S.D.N.Y. Mar. 20, 2023) (same); Depp v. Heard, No. CL-2019-0002911, 2022 WL 2342058 (Va. Cir. June 24, 2022) (actor against another actor). ↑
  5.  McKee v. Cosby, 139 S. Ct. 675, 675–76 (2019) (Thomas, J., concurring in the denial of certiorari). ↑
  6.  Berisha v. Lawson, 141 S. Ct. 2424, 2427–28 (2021) (Gorsuch, J., dissenting from the denial of certiorari). ↑
  7.  See, e.g., Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 96–97, 158–60 (2021) (critiquing Justice Thomas’s and Justice Gorsuch’s historical analyses and arguing that overturning Sullivan would have a chilling effect on the speech of news organizations); Lili Levi, Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth,” 57 U. Rich. L. Rev. 1235, 1285–87 (2023) (arguing that Justice Thomas’s historical justification for dispensing with Sullivan is inadequate and that Justice Gorsuch’s concerns about disinformation online are narrow compared to the sweeping effects that reconsidering Sullivan could have on free speech); Matthew L. Schafer & Jeff Kosseff, Protecting Free Speech in a Post-Sullivan World, 75 Fed. Commc’ns L.J. 1, 35–36 (2022) (questioning Justice Thomas’s use of the “PizzaGate” conspiracy theory as an example in favor of loosening liability standards, noting that the theory was spread by anonymous posters on message boards, actors for whom there would likely be little effective legal consequence); Lyrissa Lidsky, Untangling Defamation Law: Guideposts for Reform, 88 Mo. L. Rev. 663, 676 (2023) (arguing that reconsidering Sullivan would likely not have a substantial effect on the disinformation Justice Gorsuch is most concerned with, which does not usually come from mainstream news organizations). ↑
  8.  See generally Media L. Res. Ctr., New York Times v. Sullivan: The Case for Preserving an Essential Precedent (2022) [hereinafter MLRC], https://medialaw.org/wp-content/uploads/20‌23/01/nytsullivanwhitepaper.pdf [https://perma.cc/B7L4-UH3T]. ↑
  9.  It is probably the case that some small media organizations cannot easily obtain, or cannot easily afford, Media Liability insurance, although I have found no quantitative data confirming this. See, e.g., Christina Koningisor & Lyrissa Lidsky, First Amendment Disequilibrium, 110 Va. L. Rev. 1, 29–31 (2024) (discussing the financial pressures that media organizations face); Elise Czajkowski, Why Media Liability Insurance Is Key to Making Sure Your Newsroom Continues to Exist, Inst. for Nonprofit News, https://inn.org/research/case-studies/why-media‌-liability-insurance-is-key-to-making-sure-your-newsroom-continues-to-exist/ [https://perma‌.cc/5D47-K9Z9] (last visited Apr. 3, 2025) (recounting difficulties and costs small media organizations face in connection with defamation suits and insurance). ↑
  10.  The MLRC white paper does include a half-sentence reference to “rising libel insurance rates.” Richard Tofel & Jeremy Kutner, A Response to Justice Gorsuch, in MLRC, supra note 8, at 79, 83. ↑
  11.  See infra Section II.A. ↑
  12.  For work that addresses this issue, see generally Tom Baker, The Medical Malpractice Myth (2005); Frank A. Sloan, Randall R. Bovbjerg & Penny B. Githens, Insuring Medical Malpractice (1991); Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (1993). ↑
  13.  See Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 102–03 (2008) (illustrating how the ubiquity of automobile insurance has slowed automobile liability reform); Tom Baker, Liability Insurance as Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law in Action, 12 Conn. Ins. L.J. 1, 11–12 (2005) (explaining the role of liability insurance in shaping tort doctrine); Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 815–16 (2011) (discussing how no-fault liability insurance could reshape tort law). ↑
  14.  See Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165, 2169 (2024). ↑
  15.  There have been at most a few dozen passing references to libel insurance in the law review literature over the decades, but almost no actual discussion of its significance. It would take too much detail to systematically prove this negative. A glance at two of the major First Amendment law casebooks, however, provides some confirmation. There is nothing in the table of contents or the index of either that refers to “insurance” or “liability insurance,” and nothing in the text of either that I can find that mentions these subjects. See generally Noah R. Feldman & Kathleen M. Sullivan, First Amendment Law (8th ed. 2023); Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (4th ed. 2012). I have been able to find only two brief but actual discussions of defamation liability insurance in the law review literature, the most recent of them more than thirty years old. See Frederick Schauer, Uncoupling Free Speech, 92 Colum. L. Rev. 1321, 1339–43 (1992); Marc A. Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F. L. Rev. 1, 18–22 (1983). And roughly thirty-five years ago, part of one chapter in a book of essays made reference to and analyzed “trends in insurance premiums.” See Henry R. Kaufman, Trends in Damage Awards, Insurance Premiums, and the Cost of Media Libel Litigation, in The Cost of Libel: Economic and Policy Implications 1, 11–15 (Everette E. Dennis & Eli M. Noam eds., 1989). ↑
  16.  For a recent argument that the protections provided to public figures should be reduced, see generally G. Edward White, Reconsidering the Legacy of New York Times v. Sullivan, 23 First Amend. L. Rev. 1 (2024). ↑
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