Tag Archives | Snyder v. Phelps

Free Speech on Campus & ‘Unlearning Liberty’

Thank you to Eugene for inviting me to guest blog on The Volokh Conspiracy this week. By way of introduction, I am a First Amendment lawyer and the president of the Foundation for Individual Rights in Education (FIRE), and my new book, Unlearning Liberty: Campus Censorship and the End of American Debate, hit the bookshelves just last week.

As some readers know, Eugene has taken a special interest in campus censorship. He has frequently highlighted FIRE’s work on this blog and was a keynote speaker at our 10th Anniversary Dinner. We have also worked together on a couple of cases, including State v. Drahota and Snyder v. Phelps.

This week, I will be writing about the reality of campus censorship, the prevalence of campus speech codes, and numerous shocking stories that show how even relatively tame and uncontroversial speech is targeted. Look for my next post to see some remarkable cases of campus censorship.

But I will also be going beyond the laundry list of horror stories and discussing the many ways in which campus censorship harms us all. As I discuss in my book, I believe that it damages our greater society in two distinct ways.

The first and most dangerous harm is that speech codes and ridiculous “free speech zones” make students far too comfortable with restrictions on their freedom of speech. In a recent case at the University of Cincinnati, for example, libertarian students were restricted to only 0.1 percent of campus when they wished to collect signatures for a ballot initiative, and were threatened with police action if they strayed outside those boundaries. Further, I argue that frankly creepy indoctrination programs like the one run out of the University of Delaware teach students that censorship of “wrong” opinions is what good and educated […]

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Amicus Brief in Snyder v. Phelps

I’m pleased to say that we’ve just filed an amicus brief in Snyder v. Phelps that I wrote on behalf of the Foundation for Individual Rights in Education and Profs. Ash Bhagwat, Marin Redish, Nadine Strossen, our own David Post, and me. As readers of the blog might gather, the brief argues that the Court should conclude that the multi-million-dollar damages award against the Phelpsians for intentional infliction of emotional distress and intrusion upon seclusion violated the First Amendment; its particular focus is on the damage that a contrary result could do to free speech on university campuses. (Snyder is the case involving the Phelpsians’ nasty anti-gay and anti-American picketing a 1000 feet outside a soldier’s funeral, and posting a Web site expressing views critical of the dead soldier; for more, see here.)

Many of the arguments are based on my earlier posts on the subject. Those posts led to a forthcoming Cardozo Law Review de novo essay on the subject, as well as my forthcoming short Iowa Law Review article on tort liability and the original meaning of the freedom of speech, press, and petition. And after I wrote those articles, I decided that it might be worth turning them into an amicus brief; and now it’s out. […]

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Maine and Virginia AGs’ Statements on Not Supporting the 48 State AGs’ Brief in Snyder v. Phelps

[UPDATE: I had originally just posted about the Virginia statement, because I had seen a news report that said that the Maine AG simply had a policy of not taking sides in civil cases, presumably meaning out-of-state cases; but commenter Postscript pointed out that the Maine AG also relied on free speech concerns, so I revised the post accordingly.]

Here is an account of the Maine AG’s statement:

Mills said in a Wednesday statement that the case is a civil action between private parties and that the state generally does not take sides in such matters….

“The utterances at issue in the Snyders’ claim for damages were offensive and outrageous,” Mills said in the statement. “But the First Amendment does not allow us to distinguish between polite speech and hateful or outrageous speech.

“This is not a political question, a test of patriotism or a popularity contest about how many people take offense at a particular statement,” she said. “Once we start carving out exceptions to the First Amendment for speech that is unpopular or offensive, then we start down a slippery slope that endangers the right of all of us to hold and express views that may be thought unpopular by others.” … […]

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State Attorneys General Argue that Non-Media Speakers Should Get Less First Amendment Protection than Media Speakers

From the amicus brief for 48 states plus D.C. supporting Snyder in Snyder v. Phelps:

No decision of [the Supreme] Court has ever exempted a non-media defendant from generally applicable state tort law on First Amendment grounds.

That assertion is factually mistaken: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), held that non-media defendants could not be held liable for their speech under the generally applicable state tort law of interference with business relations.

And beyond this, Citizens United v. FEC, 130 S. Ct. 876, 905-06 (2010), expressly “‘reject[s] the proposition that the institutional press has any constitutional privilege beyond that of other speakers’” (adopting the reasoning of Justice Scalia’s dissent in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 691 (1990), and of Justice Brennan’s dissent in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985); Dun & Bradstreet involved state tort law). I’m disappointed that so many state attorneys general, of both parties, are willing to reject this, and to treat “institutional press” speakers as getting more First Amendment protection than other speakers have. And of course their position would have to deal with what Citizens United gave as one of the reasons for its conclusion: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Is this blog part of “the institutional press”? Or should it get less protection than, say, various Slate or Salon columns, or posts on National Review Online‘s The Corner?

(For a response to the argument that the text and original meaning of the Free Press Clause does offer special protection to the press as an […]

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Short Essay on Snyder v. Phelps, Part V: The Intrusion Upon Seclusion Tort

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, that the liability is justified because the Phelps’ speech interfered with Snyder’s own religious freedom, and that the liability is justified because the Snyders are private figures. Today I close by blogging about the invasion of privacy tort claim.

The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. It seems unlikely that the Court will consider the invasion of privacy claim, because it doesn’t seem to be within the scope of the questions presented by the certiorari petition. Nonetheless, I thought I’d briefly speak about it here.

“Invasion of privacy” covers several torts, but only one led to liability in Snyder: “intrusion upon seclusion.” The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses, or even whether it expresses a message at all. The Restatement of Torts illustrations are entering a patient’s hospital room to take a photograph over the patient’s objection, photographing through someone’s bedroom window through a telescope, tapping someone’s phone, getting someone’s bank records using a forged court order, and calling someone every day for a month at inconvenient times. The tort is constitutionally sound precisely because it focuses on physical conduct, not communication.

Here, though, the intrusion stemmed not just from the proximity of the […]

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Short Essay on Snyder v. Phelps, Part IV: The Libel Analogy, and the Public/Private Figure Distinction

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. […]

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Short Essay on Snyder v. Phelps, Part III: The Plaintiffs’ (not the Phelpsians’) Religious Freedom Argument

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) more passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the argument 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; ; later this week, I’ll also blog on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here.

In this post, I want to discuss the plaintiffs’ religious freedom argument. Some commenters, including the plaintiffs in their petition for certiorari, defend the multi-million dollar verdict against the Phelpsians on the grounds that it protects the plaintiffs’ own freedom to conduct their own religious ritual — a funeral — without interference. And indeed a content-neutral law that banned, say, loud noises outside a funeral would be constitutional.

But nothing in the emotional distress tort limits liability to such situations. Nothing in these jury instructions instructed the jury to impose liability only if they found that the speech interfered with a religious ritual. And the picketing and the Web page in this case did not audibly or physically interrupt the funeral. […]

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Short Essay on Snyder v. Phelps, Part II: Proximity to a Funeral, and Time, Place, or Manner Restrictions

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) more passages: Yesterday, I blogged about Hustler v. Falwell and why it applies here; later this week, I’ll also blog on the Snyders’ religious freedom argument, on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here. In this post, I want to talk about attempts to distinguish Snyder from Hustler, and in particular the argument 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 — spacial and temporal proximity as to the picketing (which was 1000 feet from the funeral), and temporal proximity as to the Web site (which was posted around the time of the funeral).

In my experience, defenders of liability in Snyder v. Phelps generally agree that the speech in the scenarios I describe (for instance, publication of the Mohammed cartoons) should remain protected. They generally argue that the matter is obvious enough that speakers need not even fear the possibility of liability in such scenarios. To yield this result, they try to offer limiting principles that supposedly make sure the tort will stay narrow. But none of those principles are actually embodied in the tort as it is currently defined, and as its terms were conveyed to the jury in Snyder.

Some defenders of the Snyder $10.9 million verdict, for instance, argue that what makes the Phelpsians’ speech especially outrageous is that the picketing was in the vicinity of Cpl. Snyder’s funeral. […]

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My Short Essay on Snyder v. Phelps, Part I: The Wisdom of Hustler v. Falwell

For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. Over the next few days, I’ll post (and combine using the Snyder v. Phelps tag) more passages, on the proximity to a funeral / time, place, or manner restriction argument, on the Snyders’ religious freedom argument, on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here.

“There is no doubt,” the Court in Hustler v. Falwell wrote, “that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described [earlier in the opinion], and a rather poor relation at that.” There is likewise no doubt that the Phelpsians’ antics in Snyder v. Phelps are quite far from normal political speech, even normal provocative and iconoclastic political speech. But the Hustler Court went on, in terms that likewise apply to Snyder:

If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm.

But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. […]

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Freedom of Speech and the Intentional Infliction of Emotional Distress Tort

Cardozo Law Review‘s de•novo online supplement is doing a symposium on the forthcoming Snyder v. Phelps case, and I agreed to write a short (9-page) essay expressing my views.

This is by design a short and therefore somewhat cursory treatment; I wouldn’t have had time to write a more detailed one, and in any event the symposium format calls for short essays. But I hope it makes its arguments as well as possible given the space constraint; so I was hoping to hear our readers’ feedback about it. If you’re interested in having a look at the piece and posting or e-mailing your thoughts, that would be great.

I’ll also serialize the article here this week, though reading the whole 9 pages in one sitting, rather than one post at a time, is probably the best way to see the whole argument. Note also that much of the material in the essay is based on some past Volokh Conspiracy posts of mine; my apologies if this makes the essay seem a bit old hat to some of you. […]

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Funeral Picketing / Intentional Infliction of Emotional Distress Case Going to the Supreme Court

[1:56 pm: Bumped up above the more specific posts on the case.]

The Supreme Court has just agreed to hear Snyder v. Phelps, the funeral picketing case. I think the lower court decision is quite right, and I worry that the Court’s decision signals the Justices’ willingness to overturn it. But I hope the Justices will do the right thing, notwithstanding the speech involved.

The Fourth Circuit’s Snyder v. Phelps decision reversed a $5 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians (that’s the “God Hates Fags” group) who picketed the funeral of a slain soldier.

The Fourth Circuit essentially concluded that, at least where speech on matters of public concern is involved (see pp. 25-26), the First Amendment precludes liability based on “statements on matters of public concern that fail to contain a ‘provably false factual connotation’” (see pp. 16-20). This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within “one of the categorical exclusions from First Amendment protection, such as those for obscenity or “fighting words‘” (p. 18 n.12) it might be actionable. But if it’s outside those exceptions, then it can’t form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it’s “offensive and shocking,” or whether it constitutes “intentional, reckless, or extreme and outrageous conduct causing … severe emotional distress” (p. 23).

I think the Fourth Circuit was quite right, for the reasons that I give in today’s other posts on the case. In particular, the decision helps forestall similar liability for other allegedly outrageously offensive speech, such as display of the Mohammed […]

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The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech

[1:55 pm: Bumped up above the other posts on this case.]

I’m blogging today about the Supreme Court’s decision to hear the funeral picketing case. That’s the one in which the jury entered a $10.9 million verdict (reduced by the trial judge to $5 million) against the Phelpsians for their offensive picketing 1000 feet away from a military funeral, and the Fourth Circuit reversed the verdict. […]

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The Phelpsians’ Speech, the Mohammed Cartoons, and the Slippery Slope

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. […]

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Where’s the State Action in Tort Awards Based on Speech?

Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really “state action” that’s governed by the First Amendment? Why isn’t it like a private employer firing a private employee, or a private property owner ejecting a demonstrator from his private property, neither of which poses a First Amendment problem? I’ve most recently heard this question about the Snyder v. Phelps intentional infliction of emotional distress jury verdict, but the same could be asked about speech-based verdicts for libel, disclosure of private facts, false light invasion of privacy, unauthorized use of another’s name or likeness, interference with business relations, and the like. […]

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Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award

The jury awarded $2.9 million in compensatory damages to the plaintiff in Snyder v. Phelps. (It also awarded $8 million in punitive damages, which the judge reduced to $2.1 million.)

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.) […]

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