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How I’m Learning to Hate the First Amendment

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.
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