Private Law Theory

ABSTRACT
If a person intentionally enters private property without consent, this entry amounts to the world’s most basic tort: trespass. If the person has the landowner’s consent to enter, there is no trespass. Simple enough. But what if the person obtains consent through deception? Does the deception vitiate consent, turning the entry into a trespass? If so, when can (and can’t) deception give rise to trespass? The answers have important implications for undercover investigators, who for centuries have used some degree of deception to enter private land and expose society’s worst atrocities – from slavery to elder abuse to cruelty at factory farms. The analyses, however, that courts and scholars have employed, suffer in our view from various shortcomings. After reviewing the existing theories, this Article proposes an alternative that has been hiding in plain sight – that simply applies the language from the Restatement Second of Torts, regarding when misrepresentation vitiates consent as a general matter, to the law of trespass. The resulting test, which we call the Nature of Entry test, boils down to the following. A trespass occurs if a person seeking entry onto property: (1) makes a representation related to the nature of the entry (2) causing the landowner to consent to an entry of that nature, and (3) exceeds the scope of the entry to which the landowner consented. In this test, the ‘entry’, per the Restatement, is shorthand encompassing the initial entry, plus any subsequent tangible presence on and interference with the property.

While derived, independently, from the Restatement’s general principles about misrepresentation, this test, upon closer inspection, turns out to be nothing novel in the world of trespass law: it applies a well-settled ‘scope of consent’ analysis, tailored to the type of invasion against which trespass aims to protect—unwanted invasions of property. By tying trespass by deception to a traditional scope of consent analysis, the Nature of Entry test offers several advantages over existing theories. First, because the First Amendment protects lies—even inexpiable lies about winning military honors, according to the Supreme Court in United States v Alvarez – a ‘trespass by deception’ test must be narrowly tailored to protect property interests, and must provide clear notice to speakers. The Nature of Entry test accomplishes both. Second, the Nature of Entry test protects just the types of interests that trespass laws are designed to protect, which was the goal of the Fourth and Seventh Circuits in leading cases analyzing liability for deception-based investigations. Finally, it squares with key precedents in criminal, tort, and constitutional doctrine, most notably the Supreme Court’s ‘false friend’ cases like United States v White, whose holdings make clear that many acts of deception do not give rise to trespass.

Gleckel, Jareb A and Nisbet, Elizabeth, Free Speech Versus Property: When Deception Can (And Can’t) Give Rise to Trespass (June 1, 2024), University of San Francisco Law Review (forthcoming 2024).