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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.

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.

Ex-Fed (mail) (www):
I think one of the more interesting series of cases testing the limits of this notion was the expansion of [i]Batson[/i] to impermissible-factor-based peremptory challenges to jurors beyond challenges by government lawyers.
11.9.2007 12:27pm
Dave N (mail):
Ex-Fed,

You are right. And of course, Batson and its progeny work on the legal myth that people are actually anxious to serve on juries.
11.9.2007 12:37pm
John Kindley (mail) (www):
Of course, that's all pretty obvious. I'm just hoping that EV will answer some of the questions commenters asked in response to his series of posts on the Snyder v. Phelps case that were a little more difficult.
11.9.2007 12:58pm
evan d:
This is the often-overlooked elephant in the room over "hostile environment" lawsuits.
11.9.2007 1:12pm
bittern (mail):
Sounds sensible to me. No doubt EV is tricking me again!
;-)
11.9.2007 1:31pm
Hans Bader (mail):
This also explains why trial lawyers and trial judges are wrong to erroneously claim that hostile-environment harassment regulations are not state action because they simply allow private plaintiffs to sue the employer.

A lawsuit over speech is state action.

(Of course, sometimes a state "civil rights" agency gets involved, making the state action quite apparent. See Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (barring application of religious harassment rule to speech which unintentionally creates hostile work environment); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (civil-rights officials liable under First Amendment for applying Fair Housing Act to speech in protracted investigation)).
11.9.2007 1:47pm
Bryan DB:
EV,
You don't think there's a difference between NY Times v Sullivan and Snyder v Phelps?
"Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

Is Snyder a public official? Was Phelps criticizing "[Snyder's] official conduct" as a public official?
11.9.2007 1:55pm
PatHMV (mail) (www):
Eugene, is there any serious debate about this issue? Or are you setting us up for another discussion about courts using the speech, religion, and beliefs of divorcing parents in order to make custody decisions?
11.9.2007 2:09pm
Eugene Volokh (www):
Bryan DB: There certainly is no state action difference between NYT v. Sullivan (or Gertz v. Robert Welch, in which the plaintiff was a private figure, but in which the Court never doubted the presence of state action) and Snyder v. Phelps. State action is present whether or not a lawsuit is brought by a public official; the state action isn't the plaintiff's, but the court's.

If you're arguing that this state action is constitutional, because of the special characteristics of this case, that's something I've tried to deal with in other posts. But if you're arguing that there's no state action here, then Sullivan, Gertz, and many other cases (as well as their underlying logic, which I mention in my psost) are against you.

PatHMV: A former student of mine (a lawyer now) e-mailed me about this; I saw a comment on the subject; I often hear this statement made. There's no serious debate in court on the subject, but there is a misconception out there that I'm trying to clear up.
11.9.2007 2:45pm
AF:
Of course common-law torts are state action. But it does not follow that they "are government-imposed content-based speech restrictions, and should be judged as such" -- if by that you mean that they are analyzed under the general tiers-of-scrutiny framework. I could not find a single Supreme Court case -- other than a Brennan dissent in Dun &Bradstreet v. Greenmoss Builders, 472 U.S. 749, 778 (1985) -- in which defamation or libel was treated as a "content-based" speech restriction.
11.9.2007 2:49pm
Sk (mail):
"So whenever a court acts coercively -- whether to put someone in jail, or to take his money -- there's government action."

Presumably, then, whenever a law exists-that compels any action whatsovever, there is coersion-either by the courts, by the police, or threatened if not actually performed.

and given this, is there any limit to the applicability of the constitution? In other words, if I accept your argument-if the courts coerce, there is State action and thus, the constitution applies-doesn't the constitution ALWAYS apply? Aren't arguments as to the limits of constitutionality moot?

(example: perhaps the government cann't discriminate based on sex. But a private golf course can. But if adherence to that golf course's rules-say, removal of a protester from the golf course itself-depends upon the coersion of the state, then the State is involved-as per your argument. There is no distinction between discrimination by the State and discrimination by a private entity, coerced, empowered, and allowed by the state-right?).


Sk
11.9.2007 3:00pm
PXL:
So whenever a court acts coercively -- whether to put someone in jail, or to take his money -- there's government action.

I think this is, of course, right. The only thing I'd add is that this isn't limited to the speech context. See, e.g., Shelley v. Kramer, 324 U.S. 1 at 20-22 (refusing to enforce racially restrictive covenant on the basis that doing so would constitute state action in violation of individual's Fourteenth Amendment rights).
11.9.2007 3:19pm
AF:
PXL -- Shelley v. Kramer is an anomaly because it applied the state-action doctrine to a private contract. In other contexts (including speech) the state can constitutionally enforce a contract that would be unconstitutional as a statute. See, e.g., confidentiality agreements. However, you are right that state tort law is state action outside the speech context. See, e.g., due process limits on punitive damages.
11.9.2007 3:41pm
KeithK (mail):

example: perhaps the government cann't discriminate based on sex. But a private golf course can. But if adherence to that golf course's rules-say, removal of a protester from the golf course itself-depends upon the coersion of the state, then the State is involved-as per your argument. There is no distinction between discrimination by the State and discrimination by a private entity, coerced, empowered, and allowed by the state-right?

In your example, government power is being used to enforce laws against trespassing, not speech. This is exactly the example that Eugene provided in his post.
11.9.2007 4:25pm
tbaugh (mail):
Sounds right to me as an expression of current law---but seems to show how far we have come from "Congress shall make no law" --to "state courts may not impose damages for common-law torts involving speech"--defamation, for example--except under certain circumstances that don't seem to be grounded in text or history, though I'm hardly expert on the subject.
11.9.2007 4:26pm
vi:
Yes, tbaugh, we can tell that you are not an expert on the subject. You obviously are not familiar with the Fourteenth Amendment.
11.9.2007 5:17pm
Bravo:
Yes, NY Times v Sullivan shows that state action is always present, and thus the state action doctrine is incoherent and cases like Jackson v Metropolitan Edison are wrongly decided.

The Realists made these arguments most forcefully in the early twentieth century. See Miller v Schoene. It is only because conservatives became afraid of the policy implications of such reasoning that they read into the Constitution the state action doctrine in the 1970s.

The fact that Sullivan, Shelley, Reitman, Schoene, and others have far reaching consequences does not mean they are incorrect.
11.9.2007 5:27pm
RHD72 (mail):
This was an interesting series of posts about the case. What was missing from your discussion was both the religious and public policy aspects of the defendants' conduct.

From a quick look at a description of the case, the defendants's entire pitch was essentially a statement of religious beliefs. Their message was that God is punishing America by killing its soldiers. Defendant celebrated God's punishment and wished for more of the same (i.e., more dead soldiers). The reason that God was punishing American, they said, was that America approves of sodomy. (That "sodomy" was this nut's bugaboo may remind some of a Biblical story where divine punishment of a more extreme quality was imposed.) As far as I can tell, they had nothing to say about the particular soldier who was being buried (other than that he was the tool of a government doing Satan's work).

While the defendants' speech was motivated by religious beliefs, his objective was to change public policy (to conform to his view of God's law). The defendants wanted to use the funeral to discuss gay rights. They just thought the better policy would be to suppress homosexual conduct by, for example, criminalizing it. There was a time not so long ago, i.e, before Lawrence, when that seemed perfectly constitutional as a public policy that the states were free to adopt.

Put aside (I know it is difficult) one's personal view of such beliefs. I don't see how the State of Maryland can force the defendants (or anyone else) not to express their religious beliefs or to refrain from addressing matters of public policy in a public forum (as I understand the facts, they were on a public street when they were making their little demonstration).

I agree with your posts about the vagueness of the tort and the overbreadth concerns. The religious and public policy aspects of the speech make this even less of a close case. I'm amazed it made it to trial rather than being dismissed at the pleading stage, or on a motion for summary judgment.
11.9.2007 6:37pm
Eugene Volokh (www):
AF: Of course libel law is content-based -- it punishes speech based on its content (false statements of fact), for fear that the content will have a certain harmful communicative impact (will unfairly make people think the less of someone.

And the Court has repeatedly so held, most recently just this year, in Davenport v. Washington Educ. Ass'n (2007):
It is true enough that content-based regulations of speech are presumptively invalid. We have recognized, however, that "[t]he rationale of the general prohibition ... is that content discrimination 'raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.'" And we have identified numerous situations in which that risk is inconsequential, so that strict scrutiny is unwarranted. For example, speech that is obscene or defamatory can be constitutionally proscribed because the social interest in order and morality outweighs the negligible contribution of those categories of speech to the marketplace of ideas.
Likewise, see R.A.V. v. City of St. Paul, listing "defamation" as a permissible "restriction[] upon content" (which itself is treated as synonymous to a "[c]ontent-based regulation[]"); Simon &Schuster v. Members of N.Y. State Crime Victims Bd. (Kennedy, J., concurring in the judgment) ("There are a few legal categories in which content-based regulation has been permitted or at least contemplated. These include obscenity, defamation, ...."); Bolger v. Youngs Drug Products Corp. ("Our decisions have displayed a greater willingness to permit content-based restrictions when the expression at issue fell within certain special and limited categories," giving as examples libel, obscenity, and fighting words); New York v. Ferber (giving libel law as an example of "a content-based classification of speech").
11.9.2007 8:01pm
AF:
Defamation and related torts are literally content-based, but as I wrote, they are not "analyzed under the general tiers-of-scrutiny framework" whereby content-based regulations are presumably invalid. The dicta you cite from non-defamation cases only confirm this point. They do not say that defamation torts, as content-based regulations, have to be justified by important or compelling government interests. Rather, they say that defamation is low-value speech than can be sanctioned. Precisely because the "dignity" torts are inherently content-based, they cannot be and are not analyzed under a general tiers-of-scrutiny framework. Rather, the court has to address directly whether the speech (or category of speech) in question deserves protection and if so, how much.
11.9.2007 8:39pm
Eugene Volokh (www):
AF: Defamation follows the standard analysis applicable to content-based speech restrictions -- if the speech is in an unprotected category (such as false statements of fact said with the proper mens rea, if a mens rea requirement is applicable), then the law is permissible (unless it contains further content-based restrictions); if it is outside the unprotected category, then the law must pass strict scrutiny (or some lower scrutiny as to commercial speech restrictions). So I agree that the Court has to decide for such torts whether the speech falls within an exception to protection (either existing or newly minted); but the torts are recognized as involving content-based governmental speech restrictions.
11.9.2007 10:48pm
John Kindley (mail) (www):
RE Snyder v. Phelps: I wonder whether we haven't fetishized public protesting and overstated its importance in the discourse and truth-seeking that the First Amendment was designed to protect. Certainly when such protests intentionally, coercively and aggressively invade the space of the objects of their protest, even in public places, considerations of personal space and the right to be left alone are just as important from the freedom-loving point of view as the right to free speech. (And I don't think we can arbitrarily set the boundaries of personal space with something like a 300 ft. "buffer zone." Seems like it has more to do with whether the speaker is intentionally and coercively imposing his speech on another in a way that the other can't avoid, e.g., if the protesters in this case got advance notice of the funeral procession route and set up their protest and held their abominable signs along that route.)

I'm inclined to distinguish such things as abortion clinic protests by suggesting that people do have a right to protest conduct or speech with which they disagree as it is happening. Objectionable conduct or speech (i.e. conduct or speech which might be legal but which arguably is immoral and/or should be illegal) "opens the door", so to speak, to contrary speech and protest. Such a principle would preclude, e.g., residential picketing of an abortionist's home, which I don't think would be a bad thing -- i.e., I don't think the discourse of this nation would suffer because of such a preclusion (and I'm pro-life and as an undergrad participated in abortion clinic protests). I suppose the Phelpsians would respond by saying that they're not only protesting homosexuality but the actual "speech" and "conduct" of this funeral, that this dead soldier should not be mourned by his family because he was part of the military of a nation which protected homosexuality. Now, that's just B.S., and maybe we'll just have to exercise our common sense and recognize the special case that funerals present by enacting a statute which prohibits protesting a funeral anywhere within sight or hearing of the funeral or the funeral procession. I don't see how such a statute could run afoul of the First Amendment properly interpreted in light of natural justice, because it seems that the natural right to mourn one's dead child in peace is every bit as fundamental as the right to free speech. (I.e. In contrast to something like abortion, we can recognize that there is nothing "objectionable" or even arguably immoral about a funeral. Granted, patriotic expressions during a funeral might complicate the issue, but so long as those expressions don't take the form of an in-your-face flag-waving funeral parade down Main St., i.e. so long as the funeral doesn't itself take on the characteristics of a public political demonstration, private expressions of patriotism during a funeral should be protected from invasion by others along with the funeral itself.) Indeed, the right to mourn one's dead child in peace would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because in the absence of a robust recognition of this right family and friends of the deceased would be prevented from, or punished for, exercising their natural right to chase the protesters out of sight or hearing of the funeral and the funeral procession.)
11.10.2007 8:10am
Ken Arromdee:
I suppose the Phelpsians would respond by saying that they're not only protesting homosexuality but the actual "speech" and "conduct" of this funeral, that this dead soldier should not be mourned by his family because he was part of the military of a nation which protected homosexuality. Now, that's just B.S.

Why's that BS? If you ask Phelps if the soldier should be mourned, he'll honestly say no. Phelps *is* protesting the mourning itself.

The only real difference is that Phelp's protest is repugnant, and the speech/conduct that he's protesting has great emotional meaning for the people making it. "The protest is repugnant" and "what is being protested has great emotional meaning" are not reasons to characterize the protest as not being about what it's obviously about.

I wonder whether we haven't fetishized public protesting and overstated its importance in the discourse and truth-seeking that the First Amendment was designed to protect. Certainly when such protests intentionally, coercively and aggressively invade the space of the objects of their protest, even in public places, considerations of personal space and the right to be left alone are just as important from the freedom-loving point of view as the right to free speech.

It's the legacy of the 1960's (and of later protest movements which try to redo the 1960's for every protestable cause). There's a double standard: our protests are great no matter who they disturb, their protests are evil things. Since protests by people who aren't ideologically related to the 1960's protestors are rare, it's easy to pretend that there's no double standard; it only becomes obvious in rare cases like Phelps (or abortion clinic protestors).
11.10.2007 12:24pm
John Kindley (mail) (www):
"Why's that BS? If you ask Phelps if the soldier should be mourned, he'll honestly say no. Phelps *is* protesting the mourning itself."

My use of the word "BS" wasn't clear in my earlier comment. I don't doubt that the Phelpsians honestly believe that the soldier should not be mourned, and were protesting the mourning itself. My point was that honoring the dead is so clearly innocuous, so clearly something family members of a deceased have the right to do (regardless of the alleged character of the deceased), that people don't have a First Amendment right to protest a funeral or a funeral procession within sight or hearing of the funeral or funeral procession. The right to mourn one's dead child in peace seems every bit as fundamental as the right to free speech. I would think that the right to mourn one's dead child in peace, without interference from protesters, would legitimately find protection under the First Amendment right to free exercise of religion. Perhaps funerals are somewhat unique in this regard.

I acknowledge that the argument I'm advancing has problems, and would have to be fine-tuned to be acceptable and workable. What about other quasi-public religious ceremonies? What about a very public funeral that implicitly or explicitly carries a political message (as a funeral with full military honors arguably -- tenuously -- does)? Nevertheless, despite the problems with the principle I'm advancing and the need for further elaboration, I don't think the discourse of this nation would suffer terribly if we simply made all funerals off-limits. I think it's worthwhile to make the effort to find a principled way to make the distinction, because I think most people with sense instinctively recognize that the Phelps had no right to make this protest, and that this instinct is correct.
11.10.2007 2:00pm
Ken Arromdee:
My point was that honoring the dead is so clearly innocuous, so clearly something family members of a deceased have the right to do (regardless of the alleged character of the deceased), that people don't have a First Amendment right to protest a funeral or a funeral procession within sight or hearing of the funeral or funeral procession.

First Amendment rights that let you protest, but only against things which are worthy of protesting, are pretty useless. The concept "too innocuous to let anyone protest it" is the camel's nose in the tent.
11.10.2007 8:43pm
TDPerkins (mail):
The concept "too innocuous to let anyone protest it" is the camel's nose in the tent.


And if any theory if constitutional construction is to ever have meaning, it can only rest on the requirement that supermajorities decide what the law may cover, and majorities decide only the details. What is sufficiently universally deplored is something which is to be devoid of constitutional protections, and that without the need for overly specific--I think speciously specific--amendment.

This is such a case.

Your "camel's nose under the tent" argument is one which turns the supermajority requirement into something it is not, which is unanimity.

Yours, TDP, ml, msl, &pfpp
11.11.2007 1:10pm
tbaugh (mail):
wow, aren't you clever, VI. OK, then let's suppose the 14th Amendment applies the 1st, so "state legislatures shall make no law"---still unclear how we get to common-law tort actions. But plainly you are more expert.
11.11.2007 6:46pm
Aultimer:

EV wrote: Of course libel law is content-based -- it punishes speech based on its content (false statements of fact), for fear that the content will have a certain harmful communicative impact (will unfairly make people think the less of someone.

EV must think Sullivan is wrongly decided in that it didn't strike down recovery for libel entirely. There's no other way to read this post and commentary.

Otherwise, he's comfortable with punishing falsehoods that (boo hoo!) unfairly make people think bad things - notwithstanding the target's unfettered ability to mitigate damages with her own speech, but against punishing intentionally and outrageously harmful opinions that cause proven damages, where no mitigation of damages(aside from therapy, time and intoxicants, I guess) is possible.
11.12.2007 10:17am
AF:
Defamation follows the standard analysis applicable to content-based speech restrictions -- if the speech is in an unprotected category (such as false statements of fact said with the proper mens rea, if a mens rea requirement is applicable), then the law is permissible (unless it contains further content-based restrictions); if it is outside the unprotected category, then the law must pass strict scrutiny (or some lower scrutiny as to commercial speech restrictions). So I agree that the Court has to decide for such torts whether the speech falls within an exception to protection (either existing or newly minted); but the torts are recognized as involving content-based governmental speech restrictions.

This is a logically coherent framework for conceptualizing defamation, but it doesn't fully explain existing law. Even under Supreme Court precedents, where would you put false statements about private figures on matters of public concern? You might want to call this unprotected speech, since it can be subject to liability; but it isn't fully unprotected, since some fault must be shown, punitive damages (and presumably criminal sanctions) cannot be imposed without a showing of actual malice, and the burden of proof must fall on the plaintiff.

If you consider the various privacy torts that are widely accepted, but have never been addressed by the Supreme Court, fitting them into the "standard" analysis becomes even more difficult. I suppose you could do so by defining a number of "newly minted" categories of unprotected speech (invasion of privacy, IIED, false lights etc.). But this would be odd for two reasons. First, these torts are old enough that calling their constitutionality "newly minted" seems quite inaccurate in a descriptive sense (since when is the Supreme Court the sole protector of speech?) Second, and more importantly, the categories of speech that are subject to tort liability have not been, and could probably not be, criminally sanctioned. Thus, as has become the case with defamation, the scope of the "unprotected category" would be defined by the scope of the tort, rather than vice versa. That is a sign that the "standard" framework isn't doing much work.
11.12.2007 2:50pm