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. That judgment, the argument goes, doesn’t depart from “neutral[ity] in the marketplace of ideas” — it simply condemns one especially offensive place and time of expressing the idea.

In particular, the defenders of the verdict sometimes appeal to the “time, place, and manner restrictions” doctrine, arguing that it is permissible to restrict the time, place, and manner of speech so long as the restriction leaves open ample alternative channels. But this doctrine applies only when the restrictions cover speech for reasons unrelated to the content of the speech, for instance because it’s too loud or because it blocks traffic. And the outrageousness of the Phelpsians’ speech was related to its vile content — signs expressing condolences, or even signs expressing criticism unrelated to the deceased (such as labor picketing aimed at the funeral home’s employment practices) would not be outrageous. An ordinance restricting all picketing within, say, 50 feet of a funeral would be content-neutral and probably constitutional. But the tort law involved here is not such an ordinance.

Perhaps, though, the “time, place, and manner restrictions” doctrine is just being appealed to by analogy: Though content-based restrictions are presumptively unconstitutional, the argument would go, this presumption should be rebutted here, partly because the restriction here is neutral as to the viewpoint of the speech, and limits only the time, place, and manner of the speech.

Yet nothing in the emotional distress tort, or in the instructions that the Snyder jury was given, constrains the jury to focus only on time, place, and manner, to the exclusion of viewpoint. It seems perfectly possible that the jury concluded that the outrageousness stems not just from the time and place of the speech, but also partly from the viewpoint: from the anti-American nature of the message, the approbation of the death of an American soldier, the message of hatred (not just moral disapproval) of gays, or the blasphemous suggestion that God approves of the speakers’ hatred. If the picketing and online criticism had been triggered by the funeral of a recently killed enemy fighter — for instance, an American traitor who went to Iraq to kill other Americans but was brought back to America for burial — would the jury have found the speech “outrageous”? In fact, the instructions’ reference to “outrageousness” invited them to consider all the factors that can make speech outrageous, and to many people that may well include the viewpoint that the speech expresses.

Even if a First Amendment specialist, steeped in the First Amendment insistence on viewpoint neutrality, might set aside the viewpoint of speech in deciding whether it’s outrageous, there’s no reason to be confident that a lay juror will do the same. “If there is an internal tension between proscription and protection in the statute, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights.” Likewise, if a jury instruction’s reference to “outrageousness” can be read as either authorizing the consideration of the viewpoint or as limiting the jury to other factors, there’s no reason to assume that this ambiguity will be resolved in favor of viewpoint-neutrality.

And the $2.9 million compensatory damages award in Snyder suggests that the jurors were indeed influenced by the Phelpsians’ viewpoint. Of course, 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 damaged to the tune of $2.9 million by speech (1) that he saw on one occasion (albeit a deeply important occasion), not during the funeral but later in the day, on television, (2) that he knew was not remotely reflective of the views of his community, and (3) that he knew was said by people who are held in contempt by the community.

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 much exacerbate the father’s grief — a grief that 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 enraged the father, and rightly so. But is $2.9 million a sensible compensation for the emotional distress caused by such rage? Or does it, as I suspect, reflect the jury’s contempt for the Phelpsians’ viewpoint — for its being unpatriotic, hateful, or antigay, or for its perverting Christian thinking for hateful purposes — and not just from the viewpoint-neutral facts that the Phelpsians (1) held up signs 1000 feet away from a funeral, and (2) posted a Web page on the occasion of a funeral?

What’s more, if the jury relied partly on the defendants’ viewpoint, and not just the actual emotional distress inflicted on the plaintiff, in calculating compensatory damages, then this means that the jury was so swayed by the viewpoint that it misapplied the instructions. (The viewpoint isn’t legally relevant to the magnitude of compensatory damages.) So it seems likely that many jurors would be at least as willing to consider the defendants’ viewpoint in deciding whether the speech was “outrageous,” a consideration that actually would be consistent with the jury instructions.

Now I realize that this is speculation. It’s conceivable, I suppose, that the jurors sincerely concluded that the speech inflicted $2.9 million worth of emotional distress on Mr. Snyder, and would have done so regardless of the viewpoint of the speech. But even if you think this, my earlier point still stands: We can’t say with any confidence that juries in emotional distress cases don’t consider the viewpoint of speech in determining whether the speech is outrageous. Again, a “vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” This danger alone is enough to make such a potentially viewpoint-discriminatory law unconstitutional.

So if you think that ideological neutrality, and a focus on restricting only speech that is very near (in time or space) to a funeral, are what makes punishing the Phelpsians constitutional, you should insist that they be punished under a law that requires juries to decide on these grounds. A targeted ban on funeral picketing might qualify. The emotional distress tort does not.