Archive for the ‘freedom of speech’ Category

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.

Well, What’s to Stop Them?

March 15th, 2011 No comments

The Phelps pinheads are at it again, this time threatening to picket the funerals of seven children who died in a house fire in rural Pennsylvania. Since the Supreme Court has effectively given them carte blanche to cause whatever emotional suffering they can — provided only that they take a few minutes to construct a sign or two that speaks to some political issue, however remote or irrelevant — expect much more of this lunacy. And, inevitably, self-help by those on the receiving end of this stupid sludge.

Devastated: The house in Madison Township, Pennsylvania, where the children died on Tuesday, March 8 Devastated: The house in Madison Township, Pennsylvania, where the children died on Tuesday, March 8

I know, I know: Counter this “speech” with more speech.

Tell that to the family.

Categories: freedom of speech Tags:

Westboro Baptist “Church” and the Intentional Infliction of Emotional Distress

March 10th, 2011 No comments

I take the case apart, and look more deeply at the tort aspects, here:

Already the comments are coming in over at I didn’t expect this to be an easy one….

“Issues” Plate Debate

February 9th, 2010 No comments

Here‘s why states should get out of the business of approving clearly political messaging for license plates. You can’t just approve one side of the debate, as the Virginia legislature will learn if it dares not to approve a “pro-choice” plate having already approved and sold thousands of  “pro-life” plates. It’s not about abortion, but about the state’s responsibility to be content-neutral in the speech it approves. (That the state even votes on this seems a colossal waste of time, too; most states handle these issues administratively, where sensible choices can be made without the kind of public hissy-fit this seems guaranteed to cause.)

Expect years of litigation if the state turns this request down. Would that be a good use of taxpayer’s money?

“All that is needed for bad fashion to prevail is for gay men to do nothing.”

December 1st, 2009 No comments

The title comes from a comment to this story, featured on boingboing (h/t to D/P, one of my readers). This picture is priceless:

I love the bemused look on her face: “Now what? I can’t just leave…. And who has time for fashion with all of these homosexuals to save? Should I have put a semi-colon rather than a comma after ‘sin’?”
The Syracuse student (left) became an instant celebrity with this inspired piece of performance art.
Unlike the in-your-face approach of, say, throwing blood at St. Patrick’s Cathedral, this is winningly disarming — and a good model for taking on some of these fools. Perhaps next time she’ll think:  “Maybe I have better things to do than than to stand on a sidewalk holding up a sign.  There’s a stack of dirty laundry at home that’s not getting any smaller.”
Funny. Just this morning I was thinking:  Maybe a better use of humor in response to some of these anti-gay nuts would be a more effective way of dealing with them. Then this comes in.  One act of free speech completely swamped by one more clever.

Equality Forum Day 4 (Part 2): Politics 101 (Russian)

May 1st, 2009 1 comment

Everything about Russia seems difficult to me. In college, I took five semesters of Russian to no discernible end. Neither French nor Spanish had proven too challenging, but this was a different critter. Each noun comes with six different endings, one for each “case.” Russian verbal aspects can’t be fully mastered by anyone without  a Ph.D. in linguistics. Even the syntax is foreign to English-speakers (even though both are Indo-European languages), so if language reflects thought, the notion of  “foreignness” becomes stronger.

Here’s the mid-20th century linguist Benjamin Whorf on the subject:

“[A]ll observers are not led by the same physical evidence to the same picture of the universe, unless their linguistic backgrounds are similar….”

Less abstractly: Political reality, no less than language, is a different animal in Russia.  This point was made abundantly clear during Thursday’s panel entitled: “Challenges of the Russian LGBT Community.” According to Polina Savchenko, founder of Russia’s first legally registered LGBT organization (“Coming Out”), Russians have “very low ‘rights’ awareness.” Savchenko, who spent many years living in the U.S. and Europe before returning home, did a good job explaining the deep differences between Western and Russian values: While we focus on rights, Russians combine a communal sense (why do you “need” individual rights?) with a practical, work-and-stay-out-of-trouble mentality.  Even within the LGB(and barely “T”) community, people ask her: Why do you organize and agitate? Given the political climate, practicality  counsels against activism. Stay underground, and you stay out of trouble. Pop up, and down comes the Whack-a-Mole mallet.

Interestingly, I found Savchenko’s points to an extent confirmed by a chance conversation  after the conclusion of the evening’s events. I spoke to a young Russian man, here in Philadelphia to study English, who was politely perplexed by the entire panel. Hailing from St. Petersburg, likely the most “Western” city in Russia, he said that he could pretty much  do what he wanted now; there is a “scene” that he’s part of back home. I almost  expected him to repeat Savchenko’s rhetorical  question: “Why do I need rights?”

Despite these formidable obstacles, not to mention the increasingly repressive policies and actions of the government, Savchenko and fellow panelist Ruslan Porshnev are tasting success — so much so that the third panelist, the expatriated Russian and D.C. resident Dmitri Chekaldin expressed outright astonishment at their progress. While Savchenko organizes and pushes for political change through her network (her group has what appear to be “chapters” in 13 regions of  Russia), Porshnev has established  the Anti-DOGMA Info Project, an on-line initiative “dedicated to the social, moral and spiritual well-being of the Russian LGBT community.”

The two see education as the foundational component of their mission; and the starting point is dismally low. For example, most Russians — including the police — don’t know that the law criminalizing gay sex was repealed in 1999. So gay bars are raided, people arrested and jailed overnight —so pre-Stonewall. So 2009 has been proclaimed, by Savchenko’s consortium of LGBT groups, The Year of Remembrance, dedicated to those prosecuted under the now-repealed law. Coming Out is asking for an official apology, hoping thereby to both  educate and to stave off a proposed law that would ban “gay propaganda,” a move that would of course be devastating to the nascent LGBT movement.

One great story to close: Russian law prohibits mass demonstrations without a permit, and as a practical matter you can’t get one as an LGBT group. “Mass” means “more than one.” But these laws can’t counter the human capacity for creative resistance.  Flash mobs (not considered a “demonstration”) are one way around the law. Then, there was the “demonstration of one.” On the Day of Silence, the leader of their group stood, alone, in a large public area with tape over his mouth. The rest of the demonstrators sat, nearby, on park benches, also with their mouths taped. The police were flummoxed. Imagine this exchange, or something like it:

“This is a demonstration!”

“There’s only one person standing there.”

“But all of these others are sitting nearby on park benches.”

“It’s a nice day! Can’t people sit on park benches on a nice day?”

“But they are all wearing tape on their mouths.”

“Why can’t they do that? Is there a law against it?”


Three Acts on Prop 8: I

March 4th, 2009 No comments

In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).  

News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”

Reader: Amen to that! “Gay marriage” isn’t even marriage..   

WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?

Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.

WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.

Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.

WordInEdgewise: OK, then consider whether this would be permissible:

News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”

Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”

WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:

News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”

Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”

WordInEdgewise: “I guess it depends on whose ox is being gored.”