If the Phelpsians magically went to their reward tomorrow, public debate would suffer very little. But I think their speech needs to be protected, because allowing the restriction of such speech — especially using the “intentional infliction of emotional distress” tort — would lead to the restriction of much more valuable speech.
Now it’s true, as many have argued, that the Phelpsians’ speech is legally distinguishable from other speech that should be protected. A judge or jury could certainly hold other speech protected, even though some see it as outrageous and severely emotionally distressing, even if the verdict against the Phelpsians is upheld.
But to me the important question isn’t whether the other speech is legally distinguishable from the 1000-feet-from-the-funeral picketing — it’s whether the speech will indeed reliably end up being legally distinguished. I worry that it might not be, because judges and juries will be more likely to accept restrictions on other speech once the rationale of the anti-Phelpsian verdict is accepted. Let me briefly explain.
Consider a hypothetical scenario: The University of Maryland decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons. The University disciplines for violating some sort of rule that bars the creation of a “hostile educational environment” for various religious groups, or for that matter a rule that bars “conduct or speech that is outrageous, and that intentionally or recklessly inflicts severe emotional distress on some students.” One can of course imagine many other similar hypotheticals; I don’t want to suggest that the bottom of this slippery slope would implicate the Mohammed cartoons and nothing else. I just thought that focusing on one concrete hypothetical would be helpful.
So assume Snyder v. Phelps is reversed by the Supreme Court — perhaps based on some of the arguments made by commenters who defended the verdict — and its reversal thus becomes a binding precedent. Let’s compare Snyder to the University of Maryland’s action, as the University will defend it:
| The award in Snyder v. Phelps. | The hypothetical University of Maryland decision. | |
| 1. Impact of government action on defendant | $10.9 million in liability, imposed by the government acting as sovereign — likely enough to ruin defendants financially. | Modest disciplinary action by a university, which might indirectly but likely at most slightly affect the student’s educational and professional prospects. |
| 2. Content of speech | Outrageous in the view of the jury, and of all decent people. | Outrageous in the view of the University of Maryland administration, and harshly condemned by many leading political and religious actors, of many denominations. |
| 3. Impact of speech on the distressed person | Millions of dollars’ worth of emotional distress (as found by jury). | Serious emotional distress, which interferes with students’ focus on their studies, and perhaps their eventual academic performance (as found by University, and as testified to by offended students). |
| 4. Impact of speech exacerbated by | Father’s grief at his son’s death. | Muslim students’ sense that they and their religion are held in contempt by many classmates and other Americans. |
| 5. Effect of speakers’ status | Father can at least feel that the speakers are a tiny and hated minority, and the speakers’ views are reviled by his fellow citizens. | Muslim students reasonably suspect that the speakers represent a substantial minority of Americans, and the speakers’ views are agreed with or even admired by many. |
| 6. Alternative avenues for speech | The Phelpsians might not have been held liable if they had picketed in a different place or time — much more than 1000 feet from the funeral, or when no funeral was in progress (though the emotional distress tort didn’t require the jury to draw such a distinction). “The constitutional value of speech that [is] intended to cause severe emotional distress is what, exactly? That valuable ideas may not be susceptible [to] expression any other way? Doesn’t the fact that we accept time, place and manner restrictions suggest that we don’t buy that reasoning?” | The students would not have been disciplined if they had expressed their views in a different place or using a different manner — off campus, or not using the Mohammed cartoons. “The constitutional value of speech that [intentionally, knowingly, or recklessly blasphemes against some people's revered religious lieaders] is what, exactly? That valuable ideas may not be susceptible [to] expression any other way? Doesn’t the fact that we accept time, place and manner restrictions suggest that we don’t buy that reasoning?” And now that we have abandoned as to Phelps the general requirement that “time, place, and manner” restrictions be content-neutral, this argument is even stronger. |
| 7. Targeting towards the distressed | The Phelpsians were generally speaking about America, God, and homosexuality, but in a way likely intended to tie their argument to the private figure plaintiff’s son’s funeral (again, the emotional distress tort didn’t require the jury to rest their verdict on this conclusion). | The students were generally speaking about Islam, but in a way that may have been intended to confront their private figure Muslim classmates, and that was in any event reckless about whether their Muslim classmates would see the speech and be distressed by it. |
| 8. Intrusion on privacy | While the speech was on a public street, it was 1000 feet away from a funeral, which was a private activity. | While the speech was at a public place in a public university, the speech was 1000 feet or less away from the dorms, which contain people’s private homes. |
| 9. Tendency of speech to cause violent reaction by the distressed | It’s possible that people would beat up the Phelpsians. | There’ve been many violent incidents, some deadly, caused by outrage over the speech, though fortunately so far only outside the U.S. |
| 10. Supposedly countervailing private rights | Restricting this speech is fine because “the right to mourn one’s dead child in peace would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because … family and friends of the deceased [are legally] prevented from, or punished for, exercising their natural right to chase the protesters out of sight or hearing of the funeral.)” | Restricting this speech is fine because “the right to [not be exposed to deeply blasphemous attacks on one's religion] would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because … Muslim students [are legally] be prevented from, or punished for, exercising their natural right to chase the [cartoon displayers] out of sight or hearing of [their paths home to their dorm rooms, classrooms, or mosques].)” |
| 11. Protecting individuals who are distressed | “Free speech isn’t speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech directed at an otherwise private person. Why is the innocent target the party that must [bear] responsibility for the damage?” | “Free speech isn’t speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech [directed at, or recklessly waved in front of] an otherwise private person. Why is the innocent target the party that must [bear] responsibility for the damage?” |
| 12. Harm inflicted by speech | “[S]peech isn’t the issue here except that it was the Phelpsians’ weapon of choice in committing battery. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder.” | “[S]peech isn’t the issue here except that it was the [students'] weapon of choice in [effectively slapping their Muslim classmates' faces or spitting in their eyes]. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder [or battery or what have you].” |
| 13. The need for social consensus on minimum standards of decency | “Society rests, not on law but on at least a rough consensus of what proper behavior is: the Phelpsians are far beyond the Pale.” | Now that we’ve established the need to restrict speech that falls beyond the Pale, we need to make clear that this speech — which is just as outrageous and distressing to our Muslim fellow citizens as funeral picketing is to us — is equally beyond the Pale. Otherwise, our failure to equally suppress the Mohammed cartoons will itself harm Muslims, by showing them that we don’t take their most deeply felt concerns as seriously as we take our own. |
| 14. Tradition | The intentional infliction of emotional distress tort has been around for decades. | Blasphemy laws have been around for centuries, and were in fact used in 1800s America to restrict offensive religious speech. |
Given this, do you think that upholding the verdict against the Phelpsians would pose no risk of strengthening the university’s hand in restricting the Mohammed cartoons? Don’t imagine what would happen if you were asked to make the judgment. Ask what is likely to be done by administrators, judges, and jurors who may well differ from you. Are you confident that a court would indeed distinguish the two scenarios (perhaps under rubrics 7 or 8) — or do you think that, once the Phelpsians’ speech is held to be unprotected, the court would defer to the university’s decision, on the theory that the two kinds of speech are similar enough even though not identical?
Do you perhaps think that, even if there is such a risk, restricting the Phelpsians’ speech is so important that it justifies running that risk? Or do you think that the extra risk is a feature rather than a bug, since universities — and others — should indeed have more power to punish blasphemous, severely distressing criticisms of others’ religions, when such criticism is seen by many as being “outrageous”?
As you might gather, I think it’s better to protect the Phelpsians’ speech, appalling as it is, than to allow its restriction — because by allowing the restriction, we’d be giving a powerful extra tool to those who would restrict a great deal of other speech.
Abdul Abulbul Amir says:
This bridge has already been crossed. The restrictions on picketing abortion industry places of business are in some ways even more restrictive than the Phelps restrictions.
Phelps and his band of slime are often interferring with the free speech (grave side eulogy) of others, while those picketing the abortion industry or those publishing cartoons are not so interferring.
March 8, 2010, 2:15 pmAultimer says:
The 1A wins this one if Phelps does. If TPM cases had shot as many holes in the 1A as the various warrantless search cases have in the 4A, then I’d be happy to have IIED based on speech barred. As it stands, I just like making Phelps spend and spend to prove his sick points.
March 8, 2010, 2:55 pmEugene Volokh says:
Abdul Abulbul Amir: The Court might have gone too far in approving restrictions on abortion picketers; I’m not sure where the line should be drawn, for instance, as to close approaches to people. But even following Madsen and Colorado v. Hill, abortion protesters remain generally free to picket quite near clinics. None of the Court-approved restrictions extend, for instance, to 1000 feet away from the entrance (which is where the Phelpsians’ picketing was), or to non-threatening but offensive speech on Web sites. In fact, the Court has struck down restrictions on picketing within 300 feet of abortion providers’ homes (that’s Madsen).
So one can certainly argue against the Court’s approving certain restrictions on certain speech near abortion clinics — but those offer no precedent for the restrictions on speech in this case.
March 8, 2010, 3:33 pmSuzy says:
I agree with this wholeheartedly. What particularly galls me about this case is that they already have the 1000 foot rule, and that’s just as it should be. I’m assuming that a few football field lengths away is far enough that disruption fades into background noise. I think the Phelps picketing should be treated just like someone who rudely blasted a car stereo next to a funeral service. We have other rules that should be able to take care of those kinds of disruptions, without squelching speech.
Of course, in response to Abdul, I think the same holds true of many anti-abortion protests. I think they should be able to display their signs and shout their slogans all day long, but when they shove it right in someone’s face (which they do) it goes too far, just because nobody should be able to shove a giant sign in your face no matter what is written or pictured on it.
It strikes me that the biggest controversies over “offensive” speech are really about the methods of delivery, for which content-neutral rules are appropriate and sufficient. If the ideas themselves offend, that’s unfortunate but they’re protected.
March 8, 2010, 3:36 pmAbdul Abulbul Amir says:
They offer no precedent only if there is a constitutional difference between the abortion industry and the funeral industry. None is apparent.
March 8, 2010, 3:41 pmMichael B says:
I don’t know about the tort angle per se, I don’t care for it’s hyper-extended use and abuse; but arguably, at least from one prominent angle, the law’s very purpose is to manage slippery slopes and these “Phelpsians” are among the most odiously self-righteous people on the face of the planet.
Legislatures should be able to deal with this type of problem without infringing upon others’ rights. It likewise brings to mind the sophomoric dictum that “you can’t legislate morality,” when in point of fact the law’s purpose is precisely to legislate morality, that is what the law is and that is what the law does. There’s not a law on the books that is not concerned with morality, either directly or indirectly.
March 8, 2010, 5:12 pmSCOTUSblog » Tuesday round-up says:
[...] tort is “facially overbroad and thus unconstitutional as applied to speech.” Volokh also applies the standard outlined in the lower court judgment to hypothetical situations and concludes that upholding the [...]
March 9, 2010, 9:49 amshawn says:
I’m with Michael B. To effectively legislate morality, the law needs to be able to identify and distinguish outrageous speech.
EV’s second factor effectively distinguishes the cases. The Phelpsians’ speech is outrageous to decent people, period; the speech in the hypo is offensive to muslims, and only ostensibly, to school administrators.
Mocking religion isn’t outrageous. What’s outrageous is believers making their beliefs the third rail.
May 24, 2010, 5:05 pm