I have already commented briefly on last week’s decision in the unhappy case of Snyder v. Phelps, which held that the Westboro Baptist Church enjoyed the protection of the First Amendment for the demonstration that it held on public lands at the funeral of Lance Corporal Matthew Snyder in Westminster, Maryland. In the original version of this post, I wrote that Snyder was a gay marine killed in Iraq. That is the clear message of the horrific statements published by Westboro but in fact, Snyder was not gay, as Justice Samuel Alito, mentioned in his dissent. The matter was pointed out to me by the Snyder family lawyer, Sean Summers, and I hasten to correct the mistake. Mr. Summers noted that his family "would have loved Matthew regardless of his sexual orientation."
The additional layer of falsehood only shows just how perverse this so-called church is. Westboro acted out of its strong, but hateful, conviction that its mission in life is to taunt the families of gay, dead soldiers for their mortal sins. But, at the same time, the church observed certain niceties. It informed the local authorities of its intention to demonstrate. It did so on a small plot of public land, located about 1,000 feet from the funeral site. It sang songs and recited Biblical text. Nor did the church use obscenities. But it did turn out that the church did make false statements about Corporal Snyder.
Illustration by Barbara Kelley
In dealing with this case, the Maryland District Court judge threw out a defamation suit, on the grounds that it was "essentially . . . religious opinion" and "would not realistically tend to expose Snyder to public hatred or scorn." The Snyders did not appeal this dismissal, but the District Court’s reasoning is shaky at best. Calling someone a "fag" (whether or not he is gay) is not an expression of religious opinion, and the law of the First Amendment should not be twisted with respect to what was in this case manifestly a false statement of act. And it is probably the case, that this denunciation would have, lamentably, exposed Snyder to public hatred and scorn, had he lived, among some public fringe to which this demented Church group sought to appeal. Indeed, it is a sad commentary on how this entire area of law develops that no mention was made of the falsity of the statement in the Supreme Court opinion. To be sure, damages on this matter are likely to be relatively low, for suits for defamation cannot normally be brought by dead individuals, but must be brought by family members who suffer in connection with those statements. But symbolic damages are critical in defamation cases, and I do not think that anything in the First Amendment blocks this sensible application of these traditional defamation principles.
Be that as it may, with defamation shunted off to the side, the District Court judge allowed a tort action to proceed for the intentional infliction of emotional distress, which only addressed the hurt to Snyder’s family from their knowledge of these scandalous falsehoods. To that claim, the jury responded with a hefty $2.9 million in actual damages and $8 million in punitive damages. The District Court judge kept the actual damages, but knocked down the punitive damages to $2.1 million, for a $5 million total. Westboro has demonstrated at some 600 sites. So if similar lawsuits were brought in all cases, the church would be on the line for a tidy $3 billion, for which sum it would be manifestly judgment-proof.
It is, alas, hard to quarrel with the Supreme Court’s decision that knocked out the District Court’s judgment against the church, by upholding the church’s right to demonstrate when, where, and how it did. But by the same token, I am uneasy about the broad rationales that were used to defend this judgment, which represents, in my view, an overly generous view of what the First Amendment is about. In the course of his opinion, Chief Justice John Roberts rested his defense on such banal facts as Westboro’s speech being a matter of "public, not private concern." Roberts then concluded that the former sort of speech, including the church’s tasteless and offensive remarks, "occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’"
He then bolstered this view with the famous line from the 1964 defamation case of New York Times v. Sullivan, "that debate on public issues should be uninhibited, robust, and wide-open." And Roberts clinched his argument by noting that in the 1988 case, Hustler Magazine, Inc v. Falwell, the Supreme Court held that tasteless parodies of individual conduct were protected against liability for either defamation or intentional infliction of emotional distress on the simple ground that anyone, either friend or foe, knew that these statements had to be, and in fact, were false.
The first amendment does not say "Congress shall make no law…abridging speech." It says "Congress shall make no law…abridging the freedom of speech." That means that someone has to decide which speech is protected and why.
To my mind, this thoughtless recitation of the wondrous virtues of public speech is in need of a sharp corrective. To see why, it is critical to return to some First Amendment fundamentals. Let’s start with the text, which is short. "Congress shall make no law . . . abridging the freedom of speech . . . ." Short as it is, it could have been shorter, for it did not say, "Congress shall make no law . . . abridging speech." The inclusion of the two words "freedom of" has to do some work. In fact, those two words have to do a whole lot of work for the First Amendment to make any sense.
The initial point is that once all speech is not protected, someone has to decide which speech is protected and why. The use of the term "freedom" is intended to link up clearly with the classical liberal vision of legal rules that give general protection to freedom of speech just as they provide for freedom of contract. But neither freedom, evidently, is absolute. The freedom of contract does not protect lies, for example, and neither should the freedom of speech. That last point is critical. Unless the constitutional protection had some such exclusion, it would make it impossible for any government (now that the First Amendment is said to apply to the states) to control consumer or securities fraud. That just can’t be.
But once we recognize that the common law of tort sneaks its nose under the tent, the question is just how far does it go? The first battleground on this issue was the law of defamation, which generally covers false statements by a defendant that bring a plaintiff into disrepute with third persons who are, as a consequence, more reluctant to deal with the plaintiff. This tort has a long history, which leads to the conclusion that defamation lies outside the scope of First Amendment protection, which indeed was the case, more or less, in the United States until the New York Times v. Sullivan decision in 1964.
It is there that the trouble begins. The law of "defamation" is not some timeless body of rules that exist on high for judges to consult. The law of defamation in any state depends on the statutes and judicial decisions within that jurisdiction, and these may vary across states. It is, however, manifestly difficult to assume that any variation in state law necessarily determines the scope of the First Amendment, with its own account of the freedom of speech. It therefore becomes an interpretive necessity for the Court to decide which versions of state defamation law survive the ultimate challenge.
That issue was front and center in New York Times v. Sullivan because the not-so-good judges of Alabama threw the book at the New York Times for what were, at most, trivial violations of the law. Today, it is often forgotten that the decision arose at the tail-end of the heroic age of the civil rights movement. The Times was sued for publishing an advertisement prepared by a number of civil rights groups under the leadership of A. Philip Randolph. The ad contained the stirring phrase "heed their rising voices" in protest of the segregationist activities of the Alabama. L. B. Sullivan, one of the City Commissioners of Montgomery, Alabama, brought the case for defamation to court even though he was not mentioned in the ad by name. The Times circulated to a mere handful of readers within the state, but Sullivan (who became something of a local hero) was awarded with $500,000 in actual and punitive damages. Other public officials were waiting to sue as well. The success of these activities could have bankrupted the Times.
So long as libertarian norms are upheld, it is just too dangerous to let any court become the arbiter of what is permissible public speech.
The Alabama Supreme Court went off the deep end when it affirmed this judgment. It was not clear that some nebulous statement in the ad about the "police" referred to Sullivan. Even if it did, the high level of damages in the absence of any demonstrated harm did not remotely reflect any real harm. At the U.S. Supreme Court level, Justice William Brennan used these arguments to protect against the manipulations of general defamation law. Unfortunately, he also broke ranks with traditional state defamation law by granting public officials (later extended to a more nebulous category of public figures) a privilege against suit unless their statements were actuated by actual malice, defined in this context not as ill-will, but as speaking a knowing falsehood, including speaking with a reckless disregard of the truth.
This last statement gets it wrong, with untoward consequences in this case. Innocent defamation can cost people marriages, businesses, and political campaigns. There is no reason why the First Amendment cannot protect against these ills, as the dominant common law view does.
Matters only got worse in Hustler Magazine, Inc v. Falwell when Justice William Rehnquist took the view that any time the public knew that the obvious and malicious defamation was false, it was duty bound to treat the statement as though it were true, thereby insulating Hustler from suits for both defamation and intentional infliction of emotional distress. But why? These statements can make others the butt of jokes and abuse, and could cause considerable anguish to boot. Some general nostrum that these statements are matters of public concern cannot conceal the enormous gulf between New York Times v. Sullivan and Hustler Magazine, Inc v. Falwell on the facts. And it does not take a finely attuned mind to draw the distinction between them. So long as a statement is false, it hardly makes sense to excuse it from liability because everyone knows that it is patently offensive. How this material advances public deliberation and debate still mystifies me.
So we are now in a position to see why Westboro survived by the skin of its teeth. No trespass, no defamation, no direct assault, and no threat of violence. In a word, the Westboro protesters conformed to all of the standard libertarian prohibitions that apply to ordinary speech. What is left is the utter offensive nature of the protesters’ speech, which would have been equally hurtful if uttered from the church’s headquarters in Topeka, Kansas, as it was 1,000 feet away from the funeral site. So long as those formalities are followed, the Supreme Court is wise to grit its teeth and let the speech go forward. Absent any violation of libertarian norms, it is just too dangerous to let any court become the arbiter of what speech is or is not permissible in public speech. The bright line rules have their purpose. On the other hand, tolerance runs only so far. Thus if the protesters had barged into the funeral grounds or had disrupted the ceremonies with loud noises, then their conduct would have been tortious, and large damages could have been awarded, given the malicious nature of the action.
But Westboro had good lawyers, and the Court got to the right place, albeit for wrong and overbroad reasons. It is a mistake to place freedom of speech on some constitutional pedestal far above the more mundane interests in property and contract rights. The classical liberal prohibitions against force and fraud lead to a perfectly coherent set of laws, without the Supreme Court putting an unwelcome finger on the scales, a finger which has already led to some unfortunate pro-defendant verdicts in defamation cases. It is, in sum, not only important to be right. It is also important to be right for the right reasons.