Finally, let me close this series of posts with a thought about the particular damages award in Snyder, and what it says about the danger of leaving these questions to juries.
The jury awarded $8 million in punitive damages to the plaintiff in Snyder v. Phelps, but it also awarded $2.9 million in compensatory damages.
Now I stress again that the speech here was extremely offensive (and, in my view, entirely unjustified); and of course the plaintiff, being a grieving parent, was especially emotionally vulnerable. Yet I would think that even a grieving father wouldn't be that damaged by speech that (1) he saw on one occasion (albeit a deeply important occasion), during television reports following the funeral, that (2) he knew was not remotely reflective of the views of his community, and that (3) he knew was said by people who are held in contempt by the community. ("Snyder testified that he never saw the content of the signs as he entered and left St. John's on the day of his son's funeral," and recall that the signs were 1000 feet away from the church.)
The speech wasn't threatening. It didn't damage the father's reputation, or even the reputation of his late son. It wasn't constantly repeated. I can't quite see how it would exacerbate the father's grief, which of course stems from his son's death, not from the fact that a small minority of hateful, anti-American kooks and publicity hounds say the son deserved to die.
The speech doubtless made the father extremely (and rightly) angry. But is $2.9 million really a sensible compensation for that sort of emotional distress? Again, remember that this was supposed to be just the amount of compensatory damages. And of course, note also that even if the First Amendment were entirely out of the picture, the size of the compensatory verdict is constitutionally significant: Under the Court's Due Process Clause jurisprudence, the punitive damages would be unconstitutional if they were too many times greater than the compensatory damages.
This, I think, further illustrates the danger of leaving juries with the discretion to decide which speech should be suppressed, especially under broad and vague standards such as "outrageous[ness]." Liability easily ends up turning on how much juries condemn the speaker's viewpoint -- as well as the speaker's manner -- and not just on supposedly objective factors such as how much damages the speech actually inflicted.
Related Posts (on one page):
- The Phelpsians' Speech, the Mohammed Cartoons, and the Slippery Slope:
- Where's the State Action in Tort Awards Based on Speech?
- Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award:
- Funeral Picketing and Residential Picketing:
- The Phelpsians' Picketing and Fighting Words:
- Invasion of Privacy and the Freedom of Speech:
- The Overbreadth Doctrine and the $10.9 Million Funeral Picketing Case:
- The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech:
Not to put too fine a point on it, but IMNSHO unless you have experinced that most dreadful of pains, losing a child, you have no concept of the pain and suffering you'll carry with you for the rest of your life. Each memory scarred by these so called "good christian men and women".
The human being in me wishes they are bled dry financially. The lawyer in me thinks a lot more dispassionately, and agrees with you our fine Professor.
More broadly, I don't doubt that losing a child causes tremendous pain and suffering. The question is whether learning that a tiny group of yahoos, whom all decent people rightly condemn, said some outrageous things about you and your child really "scar[s]" your "memor[ies]" of the child, to the tune of $2.9 million in damages. Is a lifetime (even too short a lifetime) of loving memories of living with one's child really so easily scarred by one incident that one sees on the evening news?
Frank: If this were a question of, say, $10,000 versus $50,000 or some such, I might agree with your deference to the jury. But $2.9 million for having seen the Phelpsians' mini-demonstration on the evening news? Shouldn't that make one doubt whether the jury really decided based on the actual damages the father suffered, as opposed to based on the outrageousness of the Phelpsians' speech (quite possible including its anti-American nature, bigotry, and perversion of religious belief, as well as its time, place, and harshness)?
I do know that multimillion dollar awards for IIED are not uncommon, so I wouldn't assume that this had much to do with free speech. I wouldn't leap to that conclusion unless the award were much higher.
What is the basis for asserting that the opinions of 12 people on the jury are unfounded and irrational? Well it's Mr. Volokh's opinion that they are.
Although it is improper in some jurisdictions to make the following argument to a jury, let me ask you this: If you and your family were at a funeral for your husband or father would you accept $2.9 dollars to allow a bunch of a-holes with neon signs chant about how your loved one deserved to die?
I sure as hell wouldn't.
And, yes, we can all quibble that maybe 2.9 was too much. Maybe it was too little. But that is the purpose of having 12 people agree on the number - to get a reflection of what the community's values are.
(And, by the way, I don't think this suit should have ever been allowed to proceed on 1st Amendment grounds, but that has nothing to do with whether it would be better to have a judge or a jury determine the damages.
To start with, the damages were $2.9 million, not $2.9. More importantly, I cannot credit with any respect a legal proceeding which does not produce an account of the reasoning for its verdict. Unless the court (however comprised; judge and jury in this case) can explain the reasoning leading to the result, you can't say this result reflected the community's views, or anyone's views for that matter -- because the views were not detailed. How do you check that the jury made the right call? Who gets to review their ruling for logical correctness?
At a more fundamental level: could you live with a verdict against you that said "We (the judge/jury feel that you are guilty, but can't explain why we feel this way"? Would you trust a chain reasoning which cannot be explained coherently?
But this really illustrates the problem: this is an entirely arbitrary exercise, and thus inappropriate for a jury. $2.90 is just as "correct" as $2.9 million which is just as "correct" as $29 million. When there's no standard, there's no basis for a jury award.
I'm not saying the verdict is necessarily right, just that I wouldn't condemn it without knowing the evidence. Here's a hypothesis. The family members alleged that their precious, solemn memory of the funeral was destroyed by the protestors. That they could no longer think of their family member's sacrifice and service, without thinking about the protestors and their claims. I can see that being as bad as an episode. humiliation in front of coworkers. That's just off the top of my head. Maybe the plaintiff presented a better theory
I realize this is a blog that necessarily involves seat of the pants judgments, but I don't think you can reliably second guess the jury without more familiarity with the evidence.
There really wasn't a need for such a tort until recently. Less than 200 years ago, the likely response would have called for pistols at 20 paces.
(True confession time: I'm in an apparently quite small minority that thinks the very concept of punitive damages has no place in the civil law system, that if you want punishment in addition to being made whole you should have to convince the state's attorneys to have at it, and to meet the higher standards that prevail in criminal court.)
Dilan Esper: A belated thanks!
Yes, there can be a church filled with filthy scum. However, these guys aren't that. They deface the meaning of a "church" as cover for their despicable behavior.
More importantly, how does someone else's evil speech "diminish[]" me? And, once we start taking the view that your speech can diminish me, isn't that sort of the end of the line for free speech protections, given that this will give everyone the right to demand that another's speech be suppressed just because it "diminish[es]" unconsenting third parties?
One reason is to encourage private lawsuits to discourage egregiously bad behavior.
I think more importantly though is the fact that if you didn't award them to the plaintiff they wouldn't ever be assessed in the first place since the defendant would settle out of court with the plaintiff to avoid the possibility of paying punitive damages to the government.
As to the amount of the punitives and the compensatory damages, the defendent should now take the tort doctrine of having to compensate damages to an eggshell plaintiff, specially when there is good reason to expect a thin skin.
The public policy issue I see is that of restraint on free speech. Here a non-public figure was involved. Further, speech itself was not curtailed, but delibrate malice by way of speech was punished.
EV, speech 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.
We are all diminished if we 'pass by on the other side' in the face of uncivilized actions like this. Society rests, not on law but on at least a rough consensus of what proper behavior is: the Phelpsians are far beyond the Pale.
The real 'slippery slope' lies in turning the law into a content-free process that has forgotten it reflects civilization and not vice versa.
-dk
EV, speech isn't the issue here except that it was the Phelpsians' weapon of choice in committing battery.
My impression was that the First Amendment protected speech but not physical touching. Thus words are protected but not battery. Is this except when the words are really, really bad?
The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder.
So speech can be equated to murder? If so, why doesn't the district attorney prosecute?
Society rests, not on law but on at least a rough consensus of what proper behavior is.
Sorry, I am not willing to surrender First Amendment rights whenever a "rough consensus" of society classifies particular speech as "improper." Such a standard would amount to a virtual abolition of free speech.
"I don't recall whether this limit on punitive damages has been found to be of constitutional dimensions or not, but in general it is my understanding that punitive damages must also be reasonable in proportion to the net worth of the defendant. Is there any indication that the defendants had $11 million? Even if they do, as I recall awards that wipe out net worth have been found to be excessive."
(My emphasis)
Ex Fed, if that were true, O.J.'s $33 million civil verdict would've (should've?) been tossed out fairly quickly--along with the tobacco lawsuits (among others), the Vioxx lawsuits, and so on.
No, not at all. It demonstrates that 12 people on a jury (who heard the evidence) decided that $2.9M was appropriate.
All your post adds up to is: I disagree with the jury. Nothing more, nothing less.
And as for their being no "standard" - did you review the jury instructions or verdict form before opining that there is no "standard"? Or are you just peddling more corporate tort-reform propaganda?
Did you look at all at what they where saying?
If nothing else how can anyone claim their crap doesn't fall in the catagory of "fighting words"? Everything they do is designed to "..inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568)
The Phelps' goal is to cause violence to get attention and let them sue for money to incourage more violance and get more attention. None of that is protected.
Thank you for that, Person.
Let's turn that around.
Does anyone believe those damages would have been less than $20 million if the defendant had been a white supremacist organization?
I'm with you there.
So the rule of law (even the Constitution!) should not reign supreme if at any point it runs afoul of baseball, Mom, or apple pie?
Phelps' repugnant speech would be protected if he were to stand on the steps of City Hall or picket outside a military base(but still on public property), but in this instance, he has specifically stated that he targets funerals to cause pain to the "immoral families." That IS intentional infliction of emotional distress.
He is lucky he hasn't been beaten to a pulp by now, although that might be part of the reason he does such things - he and his families are mostly lawyers as well and would have jumped on a lawsuit if they were struck.
Those trying to say this case chills free speech are not applying the "reasonable person" standard. After all, would I be protected by going to Harlem and shouting that all African Americans are (insert "N-Word" here) and genetically inferior so they didn't deserve the right to vote? I'm sure I'd get beaten to death, and deservedly so, even though, in my idiocy, I was making "political" speech.
However, though I agree with his ultimate conclusion that the Phelps liability verdict should be overturned, I do not think it is necessary to eliminate the tort of IIED to do so. Since most of comments about Professor Volokh's series of posts about the Phelps case are in this thread, I will post my comment on liability from a different thread:
One possible solution [even though I prefer Parker's]: Any punitive damages must be paid directly to the tax assessor. That way, the corrupting motive [$$$$$] to go after punitive damages is greatly reduced.
It's tricky, but if the law doesn't start from some a priori value it has no place at all to start from. Being the duly enacted product of competent authority isn't enough to justify a law's existence.
Well, this is a system that once issued a compensatory damages verdict for $2.9 million (coincidentally enough) against a McDonalds on behalf of a woman who had placed a cup of coffee with a lid marked "Warning: Contents May Be Hot" between her legs and while, in a moving vehicle, twisted off the cap, scalding herself when she spilled the "surprisingly" hot coffee.
It seems to me there is a reasonable, albeit wrongheaded, argument that this particular lawsuit should not be allowed on 1st amendment grounds. But if IIED suits are allowed against protesters who turn the funerals of private citizens into soapboxes for their cause, the size of the damage award in this particular case is at least as legitimate as most other multi-million dollar jury awards for non-economic damages.
That would be the sort of stuff you write over at the Overlawyered blog.
Or is that a different David Niporent?
If you think that this is the way juries operate then it demonstrates that you don't have any experience in this area. I have been on two juries (one crim, one civil) and have debriefed dozens of jurors after trials and based on this, I can say that jurors deliberate and debate and take their jobs very seriously.
Let me try to make this really simple so you can understand: When a jury takes a week or two weeks to deliberate - what exactly do you think they are doing before or after they pick the numbers out of a hat? Do you imagine that they take 12 days to decorate the little slips of papers with the numbers on them?