So yesterday, the Supreme Court ruled in favor of Margie Phelps and the Westboro Baptist Church against a grieving father. As much as I think that it would be nice if WBC disappeared up their own rear ends, the fact is that the court's judgment is not the worst thing that could have come out of this case. I don't agree with it, but in a close call like this, I would prefer to have a little too much freedom than not enough. But I'm going to complain anyway.
Brief History of Free Speech/The Problem with the Majority/What I think a proper standard COULD be
If there is one thing to scrutinize in terms of our understanding of free speech in relation to Phelps is how the doctrine has evolved over time. We did not use to consider a civil suit to be an actual constraint on liberty; only government action could give rise to a legitimate free speech defense. This is based more or less on the classical ideas of liberty in the United States. People should be free to do as they see fit, and be free to reap what they sow in terms of their actions. If you look at early case law in things like libel suits and such among private citizens, courts rejected free speech arguments out of hand. If the government did not institute the action, free speech could not be a valid defense.
But as I believe, and many judges have pointed out, the letter of the law is often not the lived experience of the law. Judge Harlan really harps on this in his dissent in Plessy, basically arguing that separate but equal doctrine was impossible from a practical perspective. He famously pointed out that everyone "knew what [this was] really about."
The venerable Justice Harlan, working hard on his dissent in Plessy
This applies to First Amendment issues too. Although a suit for libel, slander, IIED or other civil actions are certainly not government action, they have a practical effect of shutting down certain avenues of speech. You are much less likely to say or do certain things if you know you are going to be turned into a potential cash pinata for a jury to slam open because you said or did things they had a moral problem with.
Then again, I think that there are two problems with our modern understanding of free speech. First, we do not appreciate the context that those earlier cases truly emerged from, and we definitely don't appreciate what was really being applied. There was definitely not much in terms of Constitutional law to apply really until after the turn of the century, and even then, what really dominated how cases like this turned out were local understandings of decency. There was not some broad national understanding of shared values of free speech or free exercise during the 1800s. Look at such things as Chaplinsky v. New Hampshire, from 1942, to see a court applying an older standard of free speech. Alito echoes some of this in his dissent, although his dissent is rife with holes that are hard to ignore, and was quite self-serving in some respects.
I point all of this out because there is a problem with the majority. In our quest for a more perfect understanding of the First Amendment, I really do believe that we have abandoned a lot of common sense. Most jurists despise the phrase 'common sense,' and with good reason. Common sense dictated that slavery was acceptable. Common sense dictated that a woman could not be admitted to the bar. Common sense was an acceptable argument for many institutions and practices that many Americans now look back on with a shared national shame. But in my opinion, this is not a valid reason to completely abandon common sense, and Alito sort of scores a headshot in one part of his dissent implicitly using this argument.
Alito argues that it is hard to say that allowing the tort of IIED to succeed here truly cools a person's free speech due to the high threshold for even getting that claim in the door.
As an aside, I saw some people online criticizing the attorneys for Snyder for combining the epic with the protest in the case, believing they should be kept separate. Keeping them separate would have meant bringing two IIED claims, and having to meet this standard:
"This is a very narrow tort with requirements that "arerigorous, and difficult to satisfy." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe.
Meeting this standard two separate times would have been much less likely. Even if they somehow managed to win at the trial court, the Court of Appeals would have almost certainly have dismissed for failure to state a claim. However, for some reason Snyder's counsel did not maintain this argument at trial. I am not sure why this path was chosen, and I think it may have been a mistake. But its important to remember that the Court had launched headlong into the free speech analysis and had decided that it was going to rule purely on that basis. In other words, if the picket was going to be protected, the epic was going to be protected. The relative degree of offensiveness was essentially taken off the table. Another possible reason was the fact that Snyder actually found that epic on a search for his son's name on Westboro's site. This messed with the 'intentional' aspect of the Tort claim. In any event, while the epic was really probably worse than the actual picket, the facts were very bad for Snyder.
We have seen the use of free speech as a defense grow over time. New York Times v. Sullivan and the Flynt case are pretty famous examples. But I feel that the Court has taken a pretty drastic step in this case, because as I read it, I have a hard time imagining ANYTHING that won't be protected speech so long as it is on public property. Honestly, where are we going to draw the line? Is there a line?
I think that the old 'fighting words' standard is an acceptable standard for free speech purposes; I have trouble finding fault with it. The standard is as follows:
“To constitute excluded fighting words, the words must do more than merely "annoy or offend;" they must be "inherently inflammatory." They also must amount to "a direct personal insult" that is "directed to the person of the hearer" and must "have a direct tendency to cause acts of violence [by that person]" so as "to incite an immediate breach of the peace." The question is whether the words are such as "to provoke the average person to retaliation."Professor Nimmer meets Professor Schauer (and Others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment,” 39
Pictured: Fighting Words^
There is a problem with this standard, as applied to this case, but I will point it out in the next section. But I find it disturbing that the majority just sort of breezes over this with a slight mention and applies no analysis. This leads to only one of two conclusions: They thought that the speech Phelps pushed was nowhere near the level of fighting words, and if that is the case where in the world is the threshold for that? The other possibility is that they have just further marginalized this doctrine as a category of unprotected speech.
Here is my other big problem with the majority. Everyone has made a very big deal out of the fact that Westboro followed a state regulation in terms of keeping a certain distance from the funeral, getting a permit, and following the procedure to protest. But that regulation guarantees that the State itself will not interfere with, nor punish, the demonstrators. Yes, if they had followed all of the rules and then were marshalled out of their designated area by police, than I would be outraged. But the State did not punish WBC, nor did they pursue WBC. Snyder did. That is a completely different issue, as it is a suit originating from a private citizen. The court should not have the ability to insulate private citizens from liability against other private citizens just because one of the party followed ONE set of rules.
For anyone crying foul here, just think about it in terms of what you do everyday. When you drive your car, you are required to drive the speed limit, stay in your lane, stay off your phone, and numerous other state imposed requirements. If you hit another person's car, even while following all the rules, the suit is not dismissed out of hand because the action is sensitive to the context of the accident. There are plenty of situations where you could potentially follow all of the rules, but still be liable for negligence, or even battery, and be liable to a private citizen.
Perhaps this is just a quaint and provincial view of the Constitution. But I feel as though the true spirit of our rights cannot be summed up as absolute, inassailable freedoms. Yes you should have the right to free speech. You also have a right to be sued for a private citizen for injuring him or her with that free speech. This is generally still true, but it is becoming less and less potent as a legal maxim. I cannot agree with that. The Bill of Rights was designed to protect us from our Government; not as some sort of ticket to have a free for all where we say and do whatever the hell we please without regard for our fellow citizens. WBC argued that this was public speech (which I will address), and not directed at Snyder. However, just casting something in generalized terms should not make the conduct public when the conduct is obviously being centered around a private figure. The protest revolved around Matthew Snyder; not the capitol building.
So for me, the proper thing to do would have been to evaluate the claim of IIED on it's merits, and basically ignore the First Amendment. WBC never once challenged that they actually inflicted the injury upon Snyder. Not once. The entire time they argued that because they were exercising free speech (and also throwing free exercise around in there), and because they followed a state law, that the IIED claim should fail. That's pretty much one of the most cocky arguments you can throw at a court especially when the threshold for IIED is pretty much unreachable in most jurisdictions.
Dasean Jackson was rumored to have filed an amicus brief
But we are mortified at the idea of punishing people for things they say. For some reason or another, American jurists seem to have little to no faith in their own profession's ability to discern an unpopular viewpoint from an absolutely outrageous assault upon another person or someone who is only trying to rile up trouble. Yes, we have abused people's right to free speech in the past. But that was a different time; not just socially, but legally. A lower court judge in Kentucky in 1850 would have been in charge of a veritable fiefdom. Should a person be found guilty of violating some obscure ordinance regarding the dissemination of unpopular literature in a small town they could be in quite a bit of danger. Getting appeals was difficult, and getting representation was also incredibly difficult. Moreover, in many places contingency fees were unheard of, meaning a poor plaintiff was not going to be a plaintiff at all. The bottom line is these sorts of things would be very unlikely today. Our legal system is now TRULY a state/federal system, as opposed to before when a small town Kentucky lawyer would probably never have to argue a case in Lexington or Louisville. The ACLU has chapters everywhere. I just do not see us being washed away in a sea of arbitrary laws and ordinances designed to squash unpopular viewpoints, nor do I think that we are in danger of losing our rights down some invisible slippery slope. Our fears are not founded when viewed under a totality of our present circumstances.
Our relationship with free speech regulation
The court also seems to suggest that because the issue is one of public concern (the fate of our nation because we don't string up all the gay folk?) that the speech is protected. As I noted before, the protest hovered around a private ceremony, which is plenty good enough to transform the nature of the speech. It was about the death of Matthew Snyder, and why they were glad he was dead. They simply cast it in generalized terms, and the court nodded approvingly.
Let's create a hypothetical here. Let's imagine for a moment, that a person is a convicted sex offender, and has had to register his name and address. Let's call him Nathan Ray Batey, and let's also assume his crime was minor. Now let's just say that one day, a member of the local PTA finds out that a sex offender lives in her neighborhood. So she organizes all of her friends together to stage a picket, on a public sidewalk, across the street from his house. Their signs say things such as "God Hates Sex Offenders," "Sex Offenders are Destroying America," "All Sex Offenders Burn in Hell," and "Thank God for Chris Hansen."
What would we do without Chris Hansen
So those are all matters of public concern, but isn't it just slightly coincidental that they happen to be marching around across the street from a registered sex offender? It is even the slightest bit possible they might attract some unwanted attention to Mr. Batey? But by the analysis of this court, Mr. Batey has no remedy so long as they are in a public place and do not mention him by name, unless the city has an ordinance specifically forbidding such an action (Frisby v. Schultz, briefly mentioned). If that is truly the length and breadth of our analysis of public speech, I call it epically goofy. I read that part of the opinion as a license to harass without fear of a common law remedy, and actually completely agree with Alito.
Why the dissent is ALSO wrong
As I have devoted so much time to the majority, you may get the impression I completely disagree with them. That's untrue, I just question how they arrived at their destination. Alito is also guilty of an absolutely ferocious blunder: He takes issue with the standard of the majority (which I honestly could not parse out of that opinion), but then offers an even worse standard. His standard would hold that speech which intiates a public dialogue or debate is protected.
I honestly don't know what in the world that is supposed to mean, but I do know this: There is a whole lot of speech out there that does not initiate a public dialogue. There is really no framework for analyzing something like that; I don't know how you would even go about it.
"Here you go lower courts......why don't you.....work on that...." J. Alito
The fighting words standard does not help as much here as you might think for two reasons: First, fighting words do need to be directed at a person in an easily demonstrable fashion. Like the angry baby in the picture above, who is obviously challenging your very manhood.
Second, they really were (in the epic) insulting Matthew Snyder, the deceased. This is sort of a standing problem. Can Matthew's father enforce the rights of his son's good name when his son no longer has an interest in same? That is actually a pretty gnarly question, and one that would have made this case REALLY interesting.
To wrap it up, I do like where the court comes down in some respects. The facts of the case were actually bad for Snyder, and the majority probably made the right call coming down where they did. My only problem is that this case sets a bad precedent, and I fear that the 'content' v. 'manner' analysis that used to matter so much is now truly dead.
Life goes on. Let's see what happens now.