The Volokh Conspiracy

Not sure whether that's right, but, hey, "Think with the learned, and speak with the vulgar."

A tangent from a statement by Senator Durbin, in the Judiciary Committee meeting ($) on the Mukasey confirmation:

Judge Mukasey told me, quote, "Based on my own study, I believe the Second Amendment protects an individual's right to keep and bear arms," end of quote.

Thanks to David Codrea for the pointer.

Here's an e-mail that was just forwarded to me by someone I know; I have no reason to doubt its authenticity, though if there is any mistake, please let me know. Rule #9 appears to be quoted accurately.

November 9, 2007

Dear fellow WGAW members,

I'm ..., Chair of the newly-formed WGA West Strike Rules Compliance Committee ("SRCC") and a member of the WGA West's Board of Directors as well as an alternate member of the 2007 MBA Negotiating Committee.

The other members of the SRCC are: ....

The mission of the SRCC is to ensure that the Strike Rules are strictly enforced. The SRCC will primarily concentrate its efforts on unearthing and discouraging scab writing.

There is no more fundamental working rule than the prohibition against a WGA member performing struck work. Strike Rule #9 states: "You must inform the Guild of the name of any writer you have reason to believe is engaged in strike breaking activity or other scab writing." If you have suspicions about a particular writer or project, the best way to report them will be to call our hotline or click on the red icon on the WGA.org homepage and simply fill out the on-line form. We'll handle your call discreetly.

Our purpose is not to punish people; it is to head off scab work before it can undermine the strike.

The STRIKE TIP HOTLINE number is: ...

When you call, it will help if you flesh out your information as much as possible.

For general inquiries regarding strike rules please call: ...

Please know that the leadership of your Guild is just as eager as you to keep this strike short. Unfettered scab writing will only lengthen it. The simplest and most effective thing you can do to speed things up is to share information with the SRCC.

I've never been prouder of this union than out on this week's picket lines. I believe a good contract is within reach. We just have to hold together.

Thank you all very much.

Sincerely,

...

On behalf of the Strike Rules Compliance Committee

Note also that "Article X gives the Guild the authority to impose discipline for violations of the Strike Rules by Guild members. Discipline may include, but is not limited to, any or all of the following: expulsion or suspension from Guild membership, imposition of monetary fines, or censure. Discipline imposed is enforceable through the courts."

Note, of course, that union rules, like many blacklisting mechanisms, are the actions of private entities -- albeit ones whose actions are supported (or sometimes hindered) by various labor laws -- and not of the government acting as sovereign.

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.

The Court's answer is well-settled and, in my view, quite correct. Here's a relevant passage from New York Times v. Sullivan, the leading libel case. (The plaintiff there was a government official, but he was suing the same way any citizen could sue, and of course the First Amendment rules related to libel law don't just apply to government officials.)

We may dispose at the outset of ... the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.

That, I think, is exactly right. When a government actor (the court system) coercively transfers money from A to B because of A's speech, that is a restriction on speech. There's little difference in principle or in practice between the government's imposing a fine on, say, racist speech and the government's allowing people who are offended by racist speech to sue and collect damages (whether under a legislatively created statute or a judge-made common-law tort rule). In both situations, there is a government-created rule of law. In both situations, a government actor (a judge or jury) applies the rule of law based on the content of the person's speech. Both are therefore government-imposed content-based speech restrictions, and should be judged as such.

When a private employer stops paying a private employee because of the employee's speech, that does not involve government action. When a private property owner ejects a demonstrator because of the demonstrator's speech, and enforces this ejection through the threat of a trespass lawsuit or a trespass prosecution, then there would be government action in that lawsuit or prosecution -- the protection of real property rights does involve government action. But the government action would not be based on a governmental judgment about the content of the speech, only the government's deciding whether the defendant had stayed on another's property against the property owner's wishes. That's a big part of why trespass law is constitutional even applied to speakers.

Finally, when a person sues another for the breach of a speech-restrictive contract, there is also government action, but constitutionally permissible government action, because government actors do not themselves "define[] the content of publications that would trigger liability"; instead, contract law "simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions which may be placed on the publication of truthful information are self-imposed."

So whenever a court acts coercively -- whether to put someone in jail, or to take his money -- there's government action. And when the government action involves restricting speech because of its content (or the supposed harms that flow from its content), without the speaker's prior contractual permission, that restriction triggers the usual First Amendment scrutiny.

"[T]he medal recognizes 'those legal giants among us who have altered the landscape of California jurisprudence.' It is conferred on people 'who, through a career of extraordinary service, have made significant contributions to the quality of justice and legal scholarship in our state.'" An eminently well-earned honor for a superb judge (and, I'm pleased to say, my brother's and my former boss).

read the title of a post from our friendly rival at Above the Law, and the plea has led us to fall behind by (at current count) 313 votes. So we plead right back: Please vote for your favorite law blog — whatever that might happen to be — at this page; the rules allow you to vote once every 24 hours.

To see the posts on this subject from beginning to end (rather than in the blog-normal reverse order), click here.

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.

I've tried to explain recent posts why I think this particular verdict against the Phelpsians is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can't properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many jurisdictions' bans on residential picketing?

I discussed this in some measure last year; and it seems to me that indeed a content-neutral ban on picketing immediately in front of a place in which a funeral is being conducted would likely be upheld, just as content-neutral bans on picketing immediately in front of home are upheld.

But the bans would have to be content-neutral, rather than relying on criteria such as "outrageous[ness]" or "offensive[ness]," which invite an inquiry into the speaker's viewpoint. Compare Carey v. Brown, which struck down a residential picketing ban because the ban had a content-based exception for labor picketing.

The bans would also have to be narrow. Even as to residential picketing, the Court upheld restrictions in large part because they left open the alternative of parading through the neighborhood, and later struck down an injunction that created a 300-foot no-picketing buffer zone around certain residences. It's hard to see how, given this, the Court would uphold a ban that would cover the Phelpsians' speech 1000 feet away from the church at which the funeral was taking place.

Of course, the consequence of these limitations is that people would still be able to express their anti-American, anti-gay, cruel, unduly personalized, and just plain disgusting views in places where the bereaved could see them -- on radio programs (should such a program invite the speakers as guests or take their calls), in picket signs that aren't right in front of the funeral but are visible from the funeral procession, in press releases that some media outlets may report on, on Web sites, and the like. But repugnant as this speech may be, it seems to me that the First Amendment requires that it be tolerated.

I've argued in earlier posts that the verdict against Phelps should be set aside because the intentional infliction of emotional distress tort is facially overbroad and thus unconstitutional as applied to speech. The tort might be constitutional if a court limits it to applying only to otherwise unprotected speech (such as threats, fighting words, and so on); but it has not been so limited.

Still, some say, what if the tort is so limited, perhaps by the appellate court in this case, and liability is defended on the grounds that the Phelpsians' speech was unprotected under the "fighting words" exception? I expect that would require reversing the verdict and retrying the case, since the jury wasn't required to find that the speech was fighting words -- but why not have such a retrial, or perhaps even affirm the verdict on the grounds that the speech was clearly fighting words and thus the failure to instruct the jury more narrowly was harmless error?

Under the "fighting words" exception, speech is unprotected if "tend[s] to incite an immediate breach of the peace" by provoking a fight, Chaplinsky v. New Hampshire (1942), so long as the speech consists of a "personally abusive epithet[] which, when addressed to the ordinary citizen, [is], as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California (1971), and is "directed to the person of the hearer," and is thus likely to be seen as "a direct personal insult." See Chaplinsky v. New Hampshire (1942); Cohen v. California (1971).

I have no doubt that the speech here would lead many listeners to want to punch the speaker; it would lead me to want to do that, too. But the "direct personal insult" requirement is important, or else the doctrine would lead to the punishment of a vast range of controversial speech: picket signs that condemn strikebreakers; abortion clinic protests that call abortion providers "murderers" or "babykillers"; military base protests that call soldiers "murderers" or "babykillers"; a wide range of public speech that some see as racist, sexist, antigay, religiously bigoted, anti-immigrant; and so on. And of course, as I mentioned for the emotional distress tort, the speech would then be punishable through civil lawsuits, through criminal prosecutions, and through other mechanisms, such as universities disciplining students for engaging in the supposed fighting words.

Fortunately, courts have in recent decades read the fighting words exception narrowly, to prevent the punishment of such speech. Likewise, condemning a dead soldier, much as it might offend the soldier's relatives, would not and should not be covered by the fighting words exception. And if it were found to be covered by such an exception, then I'd expect to see the exception grow to include many of the examples I mentioned.

The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. "Invasion of privacy" covers several torts, but the ones alleged here were "intrusion upon seclusion" (because the picketing was outside a funeral, albeit 1000 feet away) and "publicity given to private life" (apparently because of the Phelpsians' statements on their Web site that plaintiff and his wife "raised [the deceased] for the devil," "RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery," "taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity," and "taught Matthew to be an idolator").

Even if the disclosure tort is constitutionally permissible -- most lower courts have held it is, though the Supreme Court hasn't opined on this -- it has been interpreted quite narrowly, and I don't see anything in this case that involves the sort of disclosure of highly embarrassing personal information (e.g., medical or sexual history) generally required for liability. Both the site and the picketing is offensive because of the viewpoint they express, the harsh language that they use, and their expression of the viewpoint in a way that's personalized to a recently killed soldier -- not because it reveals some embarrassing secrets.

The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (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 court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it's content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral -- there must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn't call all of it "highly offensive intrusion upon seclusion" -- but also from the message of the picketing.

Applying the intrusion tort here thus raises pretty much the same overbreadth, vagueness, and viewpoint discrimination problems as does apply the emotional distress tort. It may be a little narrower because it at least formally requires some sort of physical proximity with the plaintiffs. But it's also broader because it doesn't even require a finding of outrageousness (only the intrusion's being "highly offensive to a reasonable person"), and in any case the narrowing is pretty slight, if speech within 1000 feet of the funeral qualifies as physical proximity.

And one can easily see how dangerous this tort, if applicable here, could potentially be: It could conceivably lead to massive liability for antiabortion picketing within 1000 feet of abortion clinics (on the theory that people who are going in for emotionally draining and possibly life-altering medical procedures are just as entitled to "seclusion" as people who are going to a funeral). It could lead to massive liability for protests within 1000 feet of churches (including the Phelpsians), mosques, and synagogues, on the theory that people are entitled to "seclusion" in their ordinary religious services as well as in funeral religious services. It could lead to universities' being allowed to punish students for distributing or posting allegedly offensive materials near dorms; and more.

I just blogged about why the intentional infliction of emotional distress tort is unconstitutional, at least unless it's limited to otherwise unprotected speech (such as threats or fighting words) -- which it hasn't been. Here I want to explain why it's proper to focus on the constitutionality of the law generally, and not just on whether the Phelpsians' particular (and especially outrageous) speech was constitutionally protected.

As a doctrinal matter, the "overbreadth" doctrine allows such facial challenges to speech restrictions, at least so long as the restrictions are substantially overbroad. Likewise, the "vagueness" doctrine allows facial challenges to vague laws. For the reasons I discussed in my earlier post, the emotional distress tort is indeed substantially overbroad and vague.

And there's good reason for this. First, as I discussed earlier, the emotional distress tort, if upheld, would continue to deter constitutionally protected speech far beyond that which the Phelpsians engaged in, since many speakers could reasonably fear that some jury (or university administrator or judge or other factfinder) will find certain speech "outrageous." As-applied challenges don't suffice to materially diminish this "chilling effect," since many speakers lack the money and -- the tolerance for risk of ruinous liability -- needed to challenge such laws. But by allowing facial challenges, the overbreadth doctrine forces courts and legislatures to narrow overbroad laws, and thus helps minimize the chilling effect.

Second, say that you believe the Phelpsians' speech may indeed be punished on certain grounds, for instance because it condemns a dead person near his funeral. Say that you think the speech is outrageous precisely because of this; and say even that a restriction limited to such speech would indeed be constitutional (more on that later), because the restriction is ideologically neutral, and because it is severely limited in time and place.

The trouble is that the emotional distress verdict gives zero assurance that the jury indeed acted ideologically neutrally, or based entirely (or even chiefly) on the time and place of the speech. Maybe it did act this way -- but it was never told to do so, since it was simply asked whether the speech was "outrageous" and recklessly or deliberately caused severe emotional distress.

The jury could have reasoned the speech was "outrageous" in part because it was harshly unpatriotic, or critical of heroes who fought and died for their country. It could have reasoned the speech was outrageous in part because it was founded on virulently antigay reasoning. It could have reasoned the speech was outrageous in part because it perverted religious (even Christian) thinking for hateful purposes. It could have reasoned the speech was outrageous chiefly because of its message, and not because of its location. And it could have reasoned this entirely consistently with its legal duties, since it was told to decide based on "outrageousness," a concept that is entirely consistent with scrutinizing the viewpoint of the speech, and not just its ideologically neutral offensiveness or its time and place.

So if one thinks that ideological neutrality, and a focus on restricting only speech that is very near a funeral, are what makes punishing the Phelpsians constitutional, one should insist that they be punished under a law that requires juries to decide on these grounds. A decision that simply stems from the jury's finding of "outrageousness," and that could well be based on the viewpoint of the speech, is not a constitutionally sound decision.

I'm blogging today about the recent $10.9 million verdict against the Phelpsians for their offensive picketing 1000 feet away from a military funeral. Since there are lot of doctrines and questions in play here, I'll try to post separately about several separate aspects of the issue. I should also say up front that I think Phelps' speech (including both its content and the choice of its time and location) is disgusting. The question, though, is whether particular restrictions on this speech -- like restrictions on other disgusting speech -- are consistent with the First Amendment.

Let me begin by focusing not on the Phelpsians' speech, but rather on the laws under which the verdict was entered, starting with the tort of intentional infliction of emotional distress. This tort basically allows recovery when the defendant engages in (1) outrageous speech or conduct that (2) causes severe emotional distress to the defendant, and (3) the defendant intends to cause such distress, or is aware of a high probability that the speech or conduct will cause such distress.

It seems to me that this tort, as applied to speech, is unconstitutionally vague and overbroad. If narrowed by courts to cover only conduct and otherwise unprotected speech (such as reckless falsehoods, threats, "fighting words" [more on these later], and other speech that falls within the exceptions to First Amendment protection), it would be permissible. But until it is so narrowed, it is unconstitutional.

The Supreme Court in fact held the tort unconstitutional as to speech on matters of public concern about public figures, in Hustler v. Falwell. But though the Court had no occasion there to discuss such lawsuits brought by private figures (Falwell, the plaintiff, was clearly a public figure), the Court's reasoning amply applies here:

[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment... [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment ....

If it were possible by laying down a principled standard to separate [outrageous speech] from [protected speech], 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.

And indeed the Court was absolutely right about the "inherent subjectiveness" of the "outrageousness" standard. I imagine that nearly any jury would find picketing of soldiers' funerals, with signs such as "Thank God for dead soldiers," to be outrageous. But the law would potentially cover much more than such speech -- and, if upheld under the First Amendment, it would apply even in cases where juries aren't involved, such as university expulsion decisions under campus speech codes and the like. Say a university bans posting the Mohammed cartoons on the grounds that they are so "outrageous" that they recklessly inflict "severe emotional distress" on Muslim students (who aren't, of course, public figures). Or say it bans speech that's harshly critical of race-based affirmative action, and suggests that people admitted under such programs are not adequately qualified to be at the university.

Or say a plaintiff sues a newspaper that published a letter to the editor stating, "We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a 'Holy War' and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis." (I should stress that I find this view repugnant, but it seems to me that it must be protected by the First Amendment.)

In all these cases, a reasonable factfinder could indeed conclude that the speech is "outrageous" and recklessly inflicts "severe emotional distress" on some private figures. You or I might disagree, but we should expect some government actors, whether jurors or university officials, to take such a view. And if the intentional infliction of emotional distress could apply to such speech, then the speech would be effectively stripped of constitutional protection.

Moreover, allowing the punishment of speech under such a vague standard would deter even more speech than would actually be punished. As the Court held in Grayned v. City of Rockford (paragraph breaks added),

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Second, if 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.

Third, but related, where 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."

All these problems -- especially the deterrent effect ("Third") -- are implicated by the vague "outrageousness" standard.

In the next post -- even if my criticisms of the Intentional Infliction of Emotional Distress tort are generally sound, why not look at the law as applied in this case, rather than looking at the law generally?

I hope to blog in a few days about the $10.9 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians. But for now, here's more on another Phelpsian case:

Security was tight Monday as [Shirley Phelps-Roper] appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier....

According to Bellevue police, Phelps-Roper had her 10-year-old son stomp on an American flag....

The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

Her attorney, Bassel El-Kasaby, argued that without specifics on what actions broke the law in each case and who was victimized, he can't prepare his case.

"I don't think you can disturb the peace of a police officer or firefighter," he said.

He said it was "unorthodox" and potential "overreaching" by prosecutors to charge Phelps-Roper with contributing to the delinquency of a minor and negligent child abuse....

Deputy Sarpy County Attorney Marc Delman resisted El-Kasaby's request, saying he didn't want to limit the basis for the charges.

Delman told the judge that Phelps-Roper had "cleanly, openly and notoriously" made her son step on an American flag while her church protested at the funeral of William Bailey....

Well, stepping on an American flag is pretty clearly constitutionally protected speech, no less than flying a flag or burning a flag — and we're allowed to speak "cleanly, openly and notoriously," even when others are offended. We're even allowed to teach our children to engage in such speech. (I suppose that if there's some claim that the child's actions would expose him to serious risk of violent retaliation, the matter might be different, though that's far from clear; but in any case I've seen no evidence that the Phelpsians' many foes would beat up a 10-year-old boy for stepping on a flag.) The flag mutilation charge strikes me as obviously unconstitutional, following Johnson; the other charges nearly as obviously so.

In any case, "Sarpy County Judge Todd Hutton told both sides he wants written arguments on whether the prosecution should specify in more detail the actions that support the charges." Thanks to Edward Still for the pointer.