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.

See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (“Speech does not lose its protected character ….simply because it may embarrass others or coerce them into action”). And, as we stated in FCC v. Pacifica Foundation, 438 U.S. 726 (1978):

“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”

See also Street v. New York, 394 U.S. 576, 592 (1969) (“It is firmly settled that ….the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers”).

These are wise words, and they explain well why Snyder v. Phelps should likewise come out in favor of protecting speech and against tort liability for the speech.

It is true that elsewhere in Hustler, the Court describes the question as being “whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most.” And the plaintiff in Snyder, the father of the fallen marine Lance Corporal Matthew Snyder, is not a public figure. Nonetheless, the underlying rationale of Hustler, and especially of the passage quoted above, applies to all speech on matters of public concern — whether the plaintiff is a public figure or a private figure, and whether the speech is about a public figure, a private figure, or no particular person at all.

Many statements might be labeled “outrageous” by some judge, jury, university administrator, or other government actor. [Footnote: Any speech that is unprotected against liability would be unprotected against university discipline as well. And some university speech codes already try to frame their speech codes in terms borrowed from the emotional distress tort. These rules might be quite proper when applied to nonspeech conduct; the First Amendment problem arises when it applies to speech that is “outrageous” or causes “emotional distress” because of the message that it conveys.] Publishing the Mohammed cartoons outrages millions. So does burning an American flag. So might stepping on a Hamas flag, which contains a passage from the Koran. So might saying that “affirmative action results in a situation where minorities are competing with people who are better prepared to be there” (a statement that could be seen as applying to the offended people personally, as well as to minorities generally). So might arguing that a government program director is unfit for a job because she’s not a U.S. citizen. So might arguing in favor of a government policy of killing civilians in a war zone. [Again, please see here if you want to see citations to some concrete examples.]

All these statements might also inflict severe emotional distress on some private figures, and not just on public figures. Even the speech in Hustler could easily have inflicted emotional distress on Falwell’s mother, had she been alive at the time, and might have distressed his wife and sons as well.

Likewise, Muslims seeing what they view as outrageous blasphemies against their prophet might be as distressed as Cpl. Snyder’s father was. The precise source of the distress would be different, but the magnitude might well be similar, to the extent that one can compare such things. What’s more, say that the verdict in Snyder is reinstated on the rationale that it is highly offensive, extremely distressing, and outrageous. Muslims might then be doubly outraged and distressed if the cartoons that so offend them are nonetheless allowed — first, by the cartoons themselves, and, second, by the law’s failure to give them the same protection that it would by hypothesis offer Snyder.

And in all these cases, the speaker might well know that the statements are likely to inflict such distress. [Footnote: Under Maryland law, as under the law of most states, the emotional distress tort imposes liability when defendants acted “intentionally or recklessly.”] If Snyder allows liability for supposedly outrageous speech that recklessly inflicts severe emotional distress, then all this speech could thus lead to liability, university disciplinary sanctions, or in principle even criminal punishment (should a state choose to criminalize it).

Yet, partly for the reasons that the Court gave in Hustler, such speech is an important part of public debate. It should not be punished with multi-million-dollar liability, or even with college disciplinary sanctions. And it should not be deterred by the risk of such liability — a risk that is inevitable given the vagueness of the “outrageousness” standard: “[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ ….than if the boundaries of the forbidden areas were clearly marked.”

And such speech should also not be restricted using standards that leave jurors, university administrators, and other government decisionmakers free to impose liability based on the viewpoint of speech, under the vague and subjective “outrageousness” test. One defender of the Snyder verdict views the subjectivity as a virtue: “The determination of when this behavior crosses the line into outrageous conduct is rightly left up to a jury that will apply its own notions of reasonableness to decide what conduct should rise to the level of liability.” “Civil action judgments ‘reflect social conventions and tend to reflect what the majority believes’ to be acceptable behavior.” But the Supreme Court rightly said that such an approach is not permitted under the First Amendment:

[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. 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.