Posts Tagged ‘First Amendment’

How I’m Learning to Hate the First Amendment

April 16th, 2011 No comments

HatesignsOriginally posted on 3/3/11

(reposted after discussion at law school preview day)

This is a post that has been rolling around in my brain for months. Yesterday’s infuriating opinion by SCOTUS in the Westboro Baptist Church case (Snyder v. Phelps, 2011 LEXIS 1903) is the trigger for its release. I have had enough of this weepy canonization of the right to free speech, and my frustration was only increased when I heard Jeffrey Rosen gushing over the decision yesterday on NPR, calling it “quite a dramatic victory for free speech.” When the doctrine is used to allow “the brutalization of innocent victims” (in the memorable language of lone dissenter Samuel Alito), something has gone terribly wrong. In the bargain, the Court also misunderstood tort law. Not a good day for this particular ennead.

First Amendment protection has been converted into an article of religious faith. Few dare speak against it, preferring instead to intone ritualistically that freedom of speech means nothing if it doesn’t protect the speech we most hate. Like that of the Phelpses.

A critical reexamination is long overdue.

As background, keep in mind that Congress and the states already make plenty of laws restricting the freedom of speech. Laws against fraud, obscenity, and — with particular relevance here — statutes increasing penalties for hate crimes come immediately to mind. There are also so-called “time, place and manner” restrictions on speech that the Court has blessed (and that were discussed but not dispositive here), although the line between such incidental regulation and efforts to stop the speech altogether can get blurry. In short, there’s warrant for reexamining doctrine that makes First Amendment protection absolute in the “public interest” context.

Wednesday’s decision involved the hateful bile spewed at the father of a slain Marine, both at the funeral procession and thereafter. In a relatively short decision, Chief Justice Roberts conferred the Court’s constitutional blessing on these vicious personal attack, on the theory that Westboro’s vile spew was on a matter of public concern. Here are some of the enlightening messages Fred Phelps and his moronic followers carried on their placards: “You’re Going to Hell”, “God Hates You,” “God Hates the USA/Thank God for 9/11,” and so on. A few, like the last one quoted, are about matters of public concern; the first two surely are not. And just in case it was unclear that these misanthropic miscreants were targeting the family, consider the internet posting (for some reason called “the epic”1) that the Phelps family then created. The screed bears extensive quotation:

“God blessed you, Mr. and Mrs. Snyder, with a re- source and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.
“Albert and Julie RIPPED that body apart and
taught Matthew to defy his Creator, to divorce, and to
commit adultery. They taught him how to support the
largest pedophile machine in the history of the entire
world, the Roman Catholic monstrosity. Every dime
they gave the Roman Catholic monster they condemned
their own souls. They also, in supporting satanic
Catholicism, taught Matthew to be an idolater. …..

So those were the statements made. Legally at issue was whether the plaintiff’s multi-million dollar award against members of the Church could withstand constitutional attack, on the ground that the state tort claims — for intentional infliction of emotional distress and intrusion upon seclusion (a privacy tort) — must give ground to the constitutional imperative that even the most reprehensible speech should be protected.

The privacy claim is harder to sustain. The question there is whether the defendant intentionally intruded upon the plaintiff’s reasonable expectation of privacy. Maybe, but the Phelpses (there are very few protesters who aren’t members of the family) were some 1,000 feet away, and therefore the bereaved family were not a “captive audience.” Tort law is fairly restrictive on recovery for privacy invasions in public spaces, so I don’t argue with the Court on this point.

But the claim for emotional distress is quite strong under prevailing state law. The tort requires (1) extreme and outrageous conduct; (2) that intentionally causes (3) severe emotional distress. One who thereby causes such distress is liable for it (and for any accompanying bodily harm). Two acts did the damage: the protest itself, which attacked both the U.S. and the family of the deceased Marine (I disagree with Justice Ginsburg’s comment during oral argument that the reference to “you” would be understood as a collective “you” rather than the plaintiff himself);2 and “the epic.”

The Court went astray in worrying that “outrageousness” is too murky a concept to stand up against the grand First Amendment’s concern for uninhibited and robust speech. Yes, a jury could give vent to their own tastes and effectively punish the speech if the courts didn’t act as gatekeepers in these cases, as they are supposed to do. So concerned were the drafters of the Restatement (Second) of Torts that liability might metastasize, with even slight indignities being called “outrageous,” that they took the unusual step of giving courts — not juries! — a screening function: “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery….”

Does anyone doubt that this standard was met here? If this conduct isn’t outrageous, show me conduct that is. I’ll wait.

Moreover, Maryland state law (which applied to the tort claim in this case) is unusually restrictive on the issue of emotional distress — it must be “severe”, by which the state supreme court has meant distress that “hindered [Mr. Snyder’s] ability to carry out his daily activities….” So there are substantial safeguards built into the tort. But the Court never discussed these, focusing instead on the vital importance of Westboro’s message.

What, exactly, is the contribution of this message? Even if it does contribute in some tiny way to public discourse, is there to be no balancing against deliberate and directed acts of verbal vi0lence? Justice Breyer, in a cryptic concurrence, seemed to say that there might be a limit. He analogized this case to one where a defendant, in order to get a message of public interest across, physically assaulted an innocent victim. That victim would surely have a tort claim there — the First Amendment interest notwithstanding — so why not here? Breyer leans heavily on the fact that the protesters were so far away, but doesn’t deal with the other problems: the content of the signs, or the “epic.” At least he realizes that a balance is to be struck.

Alito’s dissent begins: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” He might have ended there, but instead went on to note that the plaintiff is not a public figure and that the protesters had many venues available but chose the one most calculated to do emotional harm to him. Why isn’t this actionable? Can’t the tort liability be seen as enacting a kind of “time, place, and manner” restriction on speech that says only this: No personal attacks on grieving families.

The Court thinks this is too hard a line to draw. I say: “Draw the damn line.” For once, I agree with Maggie Gallagher in her conclusion that “somewhere in our great Constitution, there has to be a way to let people bury their dead, without becoming the objects of other people’s monomaniacal desire to disrupt their grieving for publicity purposes.”

Indeed, it’s precisely the knowledge that these protests cause grieving that draws media attention. That this perverse strategy should somehow be used to insulate the defendants from liability is…nuts.

And the celebration of the decision by Jim Burroway is maddening. He argues that the case will provide a shield against allegations that anti-discrimination laws protecting the LGBT community will infringe religious freedoms: if we allow this kind of protest to protect religious freedom, then why are they worrying? Never mind that the cases raise starkly different issues. What pains me is the total disregard of the other side of this equation: the suffering of the dead soldier’s family.


The current Court seems determined to extend the First Amendment to places that should give any reasonable person reason to question. The widely reviled Citizens United case equated corporations with people for First Amendment purposes, sweeping aside several contrary precedents in its zeal to do so. In another disturbing case, the Court (with, again, only Justice Alito in dissent) declared unconstitutional a law that banned the showing of “crush videos,” which provide the viewer with the sick spectacle of dominatrix women slowly killing small animals by crushing their heads with stiletto heels.


In fairness, the law was drafted broadly enough that it could have applied to a number of contexts more deserving of First Amendment protection. But the Court’s sweeping pronouncements about the value of speech — no matter what — provide little reason to expect nuance in future decisions.

Judging from the holding in Snyder v. Phelps, this First Amendment Uber Alles trend isn’t likely to stop any time soon.

  1. There was some question about whether the epic was properly before the Court. I think it was, as evidence of a course of conduct.
  2. One more reason we need a plural form of “you” in English.

The Limitless First Amendment?

April 16th, 2011 4 comments

Originally posted on March 5 (reposted after discussion with students at law school preview day)

Since my first posting on the Westboro Baptist Church case, I’ve discussed it in a bunch of different settings — on Facebook, at swim practice, at work. The case, recall, involved Albert Snyder, the father of a dead soldier who just wanted to bury his son in peace, against Fred Phelps and his sub-human followers (and their exploited children). I’ve also been reading around on the decision, coming up mostly with misty-eyed defenses of the holding. Andrew Sullivan is typical in this regard: In a brief post, he criticized French laws that criminalize certain kinds of hate speech while celebrating the decision in the Westboro case. His conclusion: “I’m glad I live here.”

But let’s look at the kind of behavior Sullivan is defending. According to the linked story from the Guardian, the defendant, John Galliano, has done such things as the following:

Galliano was arrested on Thursday in the chic Marais district of Paris after allegedly shouting anti-Jewish and racist insults at a couple. He denied the allegations and his lawyer said he was counter-suing the couple for defamation. Police said he had drunk the equivalent of two bottles of wine.

Two days later a second woman claimed Galliano had similarly insulted her in the same bar in October. Then a video was put online appearing to show Galliano on another occasion telling two women: “I love Hitler. People like you would be dead. Your mothers, your forefathers would all be fucking gassed.”

The last one is particularly upsetting, and it’s right here:

So this boor got right “into the grill” of these two women (to quote Marjorie Phelps during oral argument in the Snyder v. Phelps case), in a way that is beyond insulting and possibly even threatening. (Phelps herself implied that the speech shouldn’t be protected in such cases.) Is this really the kind of speech — especially the last spew — that the Founders would have wanted protected? And even if it was, so what? Back when the Nation was founded, we didn’t have tort law that protected against invasions of privacy or the intentional infliction of emotional distress, either. Now we do, and I’m in favor of drawing the line where others won’t, in favor of the plaintiff in this case. Here’s dissenting Justice Alito from Snyder v. Phelps:

“Our profound national commitment to free an open debate is not a license for the vicious verbal assault that occurred in this case.”

But almost everyone’s drunk on First Amendment Kool-Aid, and the trickle-down of this poisoned liquid has been to render criticism of the majority’s decision somehow almost un-American. Here’s Philadelphia Inquirer columnist Solomon Jones, trying to reconcile his anger with what he thinks the law requires, and coming up with a call for responsibility:

From a legal standpoint, perhaps the court made the right decision. But when I view it through the prism of fatherhood – a prism that bends and refracts the colors of love and hope that are embodied in our children – I can’t see a circumstance in which the protesters could ever be right.

Had I been that father, confronted by protesters while in the throes of unspeakable grief, I doubt that I could have maintained my composure. If you hate my child because you believe that he is tangentially connected to someone else’s lifestyle, that’s fine. Don’t disrespect or scandalize my child because of it. Don’t wait until he dies to twist the knife. Don’t hurt my child in order to prove a point to someone else. Confront the real target of your rage, and face whatever circumstances result.

That’s not what happened in this case. In this case, a group of people decided that it would be easier to confront the dead than to confront the living. That, in my estimation, is not only wrong. It is cruel. And yet their protests, as distasteful as they may be, are still protected under our laws.

I don’t pretend to understand the twisted logic that would allow professed Christians to compound a father’s grief by protesting at his son’s funeral. But I do understand that freedom brings with it profound responsibility. And in the case of these protesters, they abdicated that responsibility. They went beyond the pale.

Yes, speech in America is free. Yes, we can espouse whatever opinions we wish. Yes, we can gather and protest. But in a land where free speech is at the very root of our democracy, each one of us is responsible for what we say. We are responsible for where we say it, and especially in the case of those who claim to speak for God, we are responsible to an authority that the Supreme Court cannot touch.

But the misguided dopes that are part of the WBC aren’t reading this, much less taking it in. Almost everyone would agree that — laws prohibiting this kind of behavior aside — basic decency and a sense of responsibility militate against what the Phelpses did here. So the question is whether something more is needed. Tort law can supply that missing piece, compensating the injured party and deterring future such acts, and the jury’s verdict should have been allowed to stand. Would such tort liability “chill” speech, the catechismal concern of constitutional law scholars and jurists everywhere? I hope so.

I might be almost alone, but there are others who at least see a big problem here. A particularly astute Facebook friend writes:

I too am befuddled the lack of nuance in the widespread positive response and the increasing conflation of “free speech” with “universally consequence-free speech.” The actual facts–both those considered by the majority in construing the signs and those set aside in (arguably: swept under) the first footnote [she means the “epic”, which the Court declined to consider] –would seem to make for a much closer call than most of the blogosphere recognizes, whichever side one comes down on.

Yes. A little more debate, please.

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

The Modest Supreme Court

January 23rd, 2010 No comments

A regular reader of this blog sent me an email with this invitation: “John, You need to write about this f****ing corporate First Amendment bull**** on your blog.” I assume he’s talking about the Supreme Court’s decision in Citizens United on Wednesday, which removes all meaningful federal and state regulation of what corporations can spend on elections. OK, motion granted.

The case is, strictly speaking, endless, running to almost 200 pages including concurrences and dissents. Speaking specifically of the 5-4 majority’s several opinions, it’s not surprising that the thing is so long. It takes a lot of ink to (1) try to justify the overruling of two recent Supreme Court decisions (Kennedy majority opinion); (2) attempt to square this act of breathtaking judicial overreaching with a stated judicial modesty (Roberts concurrence); and (3) strain to construe the holding as consistent with “original intent,” as though the founders of the Constitution would have seen the modern corporation as a full person entitled to the unfettered protection of the First Amendment (Scalia concurrence).

For all of Kennedy’s bloated rhetoric and tedious justifications, the syllogism it relied on is, at root, this: Corporations are groups of people. People have First Amendment rights, so corporations do, too. And the media — not all bloggers, though, thanks — arecorporations, too. If they have full First Amendment rights, why not all corporations?

There are so many criticisms one might level at this decision. Most centrally, it overlooks the agency and accountability problems that insulate corporations from their shareholders. In an age of the vast and diversified portfolio, many investors — including this one — don’t even know where all of their money is invested. Whatever corporations my modest loot happens to be invested in right now don’t speak for me. Will this decision force me to do something different? Maybe, but I doubt it. It’s just not reasonable to expect people to keep track of all of the messages their corporations are spreading around, many of which are done in subterfuge.

As to the point about media corporations having a voice that legislation doesn’t allow other corporate actors, it must be said there’s something to it, as “the press” is a far cry from what the Founders knew. For a typically first-rate account of the evolution of the press and its effect on democracy, I recommend Paul Starr’s piece in the current Atlantic. Starr’s account lays out the fuzzy line running from MSM to partisan cable outlets, to blogs and other web presses. But investing, say, major pharmaceutical companies, houses of finance, and major labor unions (yes, the ruling applies to them too, but they have much less power these days than the corporations they battle), with the full panoply of First Amendment rights afforded citizens or the press that  has historically informed them is the action of a Court more interested in Republican party dominance than with something as quaint as “legal principle.”

But Chief Justice Roberts is just “calling balls and strikes.” No one should be under any illusions about the current Court’s agenda. But what can be done?

How about public financing of campaigns? Maybe it takes something this awful to get us to reform our terrible, bloated, and downright wasteful system for electing our politicians. If something isn’t done, and soon, the corporate influence may swamp everything. I have a fantasy about a Pushcart War style of insurgency by the blogosphere, but our pea shooters might not be enough against trucks of this size. If you’ve never read this children’s book, do it now. Simple, but kind of chilling.

Oh, Perry! (Hold On)

January 10th, 2010 No comments

In case you were wondering whether the Prop 8 defenders believe their arguments are sound, wonder no more: They have gone so far as to seek, from Supreme Court Justice Anthony Kennedy (who decides such applications for the Ninth Circuit, of which California is a part), an emergency stay of the California court’s order to allow a delayed broadcast of the trial proceedings. The trial is to start tomorrow, with the youtube broadcast to be offered on time delay (maddeningly, we don’t know when the video will be available; later the same day, or early the following day).

Does this action sound to you like that of a group confident in the strength of its arguments? Me, neither. The stay application cites the prospect of witness intimidation and harassment if this show trial is broadcast. Translation: We’re much better off if people can’t see that we have no good arguments against allowing gay couples the same right to marry that heterosexual couples take for granted.

One interesting tea leaf to read here: Justice Kennedy is among the Court’s most consistent defenders of the First Amendment, reading its guarantees quite broadly. Thus, if he does grant the stay, the prospects for ultimate success at the Supreme Court dim. His vote is likely decisive. And Kennedy probably can’t dodge the issue by asking the full Court to weigh in, because the other eight justices would likely split 4-4, throwing it right back to him.1 There’s something fitting about Kennedy’s role here: He can decide this, all by himself. We might as well say that about marriage equality, generally.

  1. I know, this is much too simple, because this isn’t the same as deciding the marriage issue on the merits. And the First Amendment issue could split the Court in a different way. Yes, but if Bush v. Gore taught us anything, it’s that theory and doctrine will be subordinated to political result when the chips are down. So I don’t expect the conservative wing of the Court to do anything that would diminish, even hypothetically, the case against marriage equality which they may soon have to hear.

What About the Women?

August 30th, 2009 1 comment

In my previous post, I wrote about the protests being staged against Dr. LeRoy Carhart, a self-claimed abortionist who’s one of the few doing late-term procedures. Now the anti-abortion forces are met by an equally passionate and committed pro-choice group, led by the National Organization for Women. The two sides converged in an angry Tower of Babel reenactment in front of Dr. LeRoy Carhart’s clinic. While Operation Rescue presents the pornography of dismembered fetuses, a counterprotester reminds us that “women are not an incubator….They’re not little vessels for men to plant their seeds in.”

My position is that abortion must be safe and legal, and that, morally, the cases range across a spectrum that I’m loathe to second-guess without the facts that I don’t (and shouldn’t) have access to. But I continue to despair at the miserable level of discourse and the lack of nuance that seems endemic to the abortion issue.

We know that abortion is a chilling, fraught act. Showing dismembered bodies does nothing but sensationalize and, in its way, trivialize the issue. On the other side, reducing the anti-choice forces to women-clubbing cavemen who believe that women are “vessels” disrespects those for whom abortion is a terrible, and unjustified taking of a precious human life. To oppose the practice is not (necessarily, anyway) to equate women with incubators.

Consider the women coming to the clinic. The anti-choice crowd has made it their practice to cow these women into changing their position, whatever their circumstances. Heedless of the women’s mental and emotional health, their brow-beating tactics have inflicted substantial harm that they disregard. I’m more sympathetic to the counter-demonstrators, because they are in evidence to show support. But their presence, supported by whatever good intentions, feeds the circus atmosphere. I’d guess that these women want and need support from counselors, friends, and family;  not from national, political organizations.

Please don’t lecture me about the First Amendment. Assuming that no one is blocking access or intimidating anyone (not always a valid assumption in the case of Operation Rescue), both sides can continue firing their angry salvos. But there’s more at stake here than legal rights, or even — yes — the honestly held and fervently  defended views on both sides. There are also actual women coming to the clinic, looking for answers to questions that have none. What about them?