Does the First Amendment protect defendants against tort claims arising out of speech or expression?

QUESTION PRESENTED The circuit courts are divided over when the First Amendment protects defendants against tort claims arising out of speech or expression. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) this Court applied First Amendment scrutiny to intentional infliction of emotional distress claims premised on the defendant’s speech. Id. at 52-53. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), however, the Court stated that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Id. at 669. The lower courts have struggled to reconcile Hustler and Cowles, leading to acknowledged division about when parties may be held liable in tort for speech or expression that has not been shown to be false. The question presented is: Does First Amendment scrutiny apply when a plaintiff's claim for damages is based on a defendant’s public speech, even if a plaintiff sues under a law of general application or attempts through creative pleading to recharacterize publication damages as something else?