In an interesting attack on the alienation of affection cause of action, a North Carolina judge ruled that the cause of action violates due process and privacy interests of the Fourteenth Amendment and First Amendment Free Speech rights.
While I’m a critic of the AA cause of action, I agree with Eugene Volokh’s criticism of the decision.
The problem I have with the claim is that proving the cause and damages of a failed marriage are just too nebulous. I discussed some of my specific criticisms a few years ago in this post.
In particular, these cases have huge causation and damages issues. In practice, however, they don’t. Plaintiffs almost always win alienation of affection lawsuits (at least in Mississippi) and often render large damages verdicts–even in very conservative counties.
So alienation of affection is basically a strict liability cause of action with a possible punitive component in the compensatory damages verdict.
I’m a fan of opinions that strike down the cause of action, but the First Amendment is probably not the best way to do it.