Today the Court decided Snyder v. Phelps, the case about the Westboro Baptist Church's anti-gay picketing of military funerals. Snyder had won a jury verdict on intentional infliction of emotional distress (IIED), a relatively recently created tort that applies to conduct so "outrageous" that it goes beyond the bounds of what society finds acceptable. This was a tough case that pitted a First Amendment right to speak on matters of public concern against a non-public figure's right to privacy. The decision came down 8-1 on the side of the church, and I think their analysis misses the point. Strangely enough, and in a way that may destroy any ACLU cred I have, I find myself agreeing with Justice Alito in dissent, and those are not words I expected to find myself typing.
Basically, here's the problem. IIED is a tort that can be triggered by speech. On that point, no one disagrees. Here's the definition of IIED from the Second Restatement of Torts: conduct which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The Restatement also notes that "the distress must be 'so severe that no reasonable man could be expected to endure it." Well, the First Amendment has a doctrine called "fighting words," the first prong of which is words "which by their very utterance inflict injury." If an utterance is considered "fighting words," it receives no First Amendment protection--it's not even considered speech. So I join Justice Alito in asking: under what conception of fighting words does any speech so severe as to be considered IIED not fall? Think about it: the jury has already concluded, to the tune of $2.3 million, that the words did inflict injury. They're fighting words by definition.
So if the analysis had started there, as I think it should have, there is a presumption of no protection. But then you can ask whether there should be an exception for fighting words that are matters of public concern, which might be reasonable enough. We consider political speech important enough that even if it hurts or "severely distresses" people, we might make an exception to the exception. However, there's already a case on this point: R.A.V. v. City of St. Paul (1992), which I can't seem to find cited anywhere in this opinion or dissent. R.A.V. concerned a St. Paul ordinance that prohibited racist fighting words. Justice Scalia, for the majority, said that content and viewpoint discrimination even among unprotected fighting words was anathema to the First Amendment. This opinion really shook things up at the time, because it's not obvious - no protection should mean no protection, but even here, content discrimination is not allowed. Applying that rule to this case, the Court would be ignoring R.A.V. to make "matters of public concern" an exception to fighting words doctrine, which they simply can't do.
I can understand how the Court came to the conclusion they did, trying to balance "speech" with "privacy," but by dismissing fighting words in footnote as they did, they turned the analysis on its head. I can also understand the view that these are not fighting words because they are mere hate speech, and the Court doesn't want to go there. (Ask me about that another time.) However, the court doesn't need to go there. We don't get to a balancing test because a jury said a while ago that the church's actions were injurious, and thus they are fighting words by definition. It could have been a very narrow holding on these grounds. Alas, the Court just got it wrong.
Update: I should add that I don't think "I hate that Church, but they should have a voice" is responsive to my argument at all. As Justice Alito points out:
Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.”That's the point - it's not suppression of speech - it's suppression of verbal assault only.
It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. (citation omitted)
Update II: My friend Maia made a point to me that the R.A.V. analogy isn't perfect. In that case, the distinguishing factor was racist language, which the First Amendment doesn't care a whit about, whereas here, "matters of public concern" is at least present in other areas of First Amendment law, namely public employment cases, and is therefore cognizable as a content-based distinction.
Still though, that leaves the question of why it should apply to IIED. The Court never addresses this question, choosing instead just to drop it in. If you're yelling bad things about the government to a government employee, violently enough to trigger an IIED verdict (remember, it's a high bar), that's really protected? There'd better be a good reason that your right to speak generally isn't enough, or we're going to end up calling into question all of harassment law.
