For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) some passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the arguments that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral, and that the liability is justified because the Phelps’ speech interfered with Snyder’s own religious freedom. Tomorrow I’ll also blog on the invasion of privacy tort claim.
In this post, I want to discuss the plaintiffs’ analogy to libel law, and the public/private figure distinction. Others suggest that, just as speech that defames private figures is less protected under libel law, so speech that distresses private figures should be less protected under the emotional distress tort. The analogy would not support punitive damages for outrageous speech, since the rules for punitive damages in libel law are the same for private figures and public figures. But it might be offered to justify compensatory damages liability.
Yet even so limited, the analogy doesn’t work. The premise behind the constitutionality of a properly limited libel tort is that libel law covers only speech that lacks “constitutional value” — false statements of fact:
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.
But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
False statements, to be sure, are still sometimes protected, but only because of the danger that restricting some unintentional falsehoods might deter even true statements. The Court’s greater tolerance for libel liability in cases brought by private figures stems from the conclusion that the underlying falsehoods are constitutionally valueless regardless of who the plaintiff might be. “The First Amendment requires that we protect some falsehood in order to protect speech that matters.”
In the emotional distress tort, the underlying statements are either opinions or true statements of fact. According to Gertz itself, they do have constitutional value — they are themselves “speech that matters,” which has to be protected. Even outrageous and rightly morally condemned ideas are covered by Gertz’s correct conclusion that “Under the First Amendment there is no such thing as a false idea.” And that too is true regardless of who the plaintiff might be: Private figure plaintiffs should be unable to suppress outrageous ideas, just as under Hustler public figure plaintiffs are unable to do so.
Note also that the category of private figures includes many people — civil rights lawyers, authors, civic group officers, professors, criminals, and more — who are involved with matters of public concern. A lawyer who had “long been active in community and professional affairs,” “served as an officer of local civic groups and of various professional organizations,” and “published several books and articles on legal subjects” is a private figure, even with regard to a politically charged civil rights lawsuit in which he represented the plaintiffs. A director of research at a state mental hospital who was also an adjunct university professor is a private figure, even with regard to a controversy stemming directly from his research. And the Court has specifically rejected the argument “that any person who engages in criminal conduct automatically becomes a public figure,” even as to comments limited to “issues relating to his conviction.”
This might well be right when it comes to defamation claims. Perhaps constitutionally unprotected false statements of fact about such figures — false statements that could wrongfully ruin someone’s career or break up a family — should indeed lead to compensatory liability on a showing of negligence.
But that such private figures may be protected against negligent falsehoods hardly means that they should be protected against supposedly outrageous expressions of opinion, even ones that refer to them personally. A student journalist or Web site operator who ridicules an allegedly foolish or rude or narrow-minded professor shouldn’t have to worry about being held civilly liable under the vague “outrageousness” standard. Neither should a person who harshly criticizes a controversial student activist (someone in much the same position as Gertz the civil rights lawyer and civic group officer), or sharply condemns an accused petty criminal, or argues that some professor shouldn’t hold some position because he’s not a citizen. Nor should students have to worry about facing suspension or expulsion for such speech, if university administrators (or self-selected student disciplinary committee members) applying a speech code based on this standard conclude that the speech is “outrageous.”
Again, none of this disposes of the constitutionality of a content-neutral rule that restricts demonstrations in a narrow zone outside a funeral, whether the funeral is of a private figure or a public figure. But Snyder doesn’t involve a challenge to such a law; Snyder involves a tort and an “outrageousness” standard that is neither content-neutral nor narrowly limited to funerals.