Prof. Brian Murchison on Snyder v. Phelps

Brian MurchisonProfessor Brian Murchison, the Charles S. Rowe Professor of Law, posts here about his reaction and thoughts on the recently decided U.S. Supreme Court Case, Snyder v. Phelps. He also previewed the case last October here at the Faculty Scholarship Blog.

The Supreme Court’s decision in Snyder v. Phelps was consistent with First Amendment precedent; the Court’s 8-1 vote on the merits was perfectly plausible and not unexpected.

The facts are well known.  A fringe church crudely exploited the occasion of a deceased Marine’s memorial service.  The group gathered in a space permitted by police, some 1,000 feet from the church, without breaching the peace or disrupting the service, and their signs expressed a message that many thought bizarre — that God kills soldiers to punish the United States for condoning homosexuality.   When the Marine’s father sued the church group for intentional infliction of emotional distress and invasion of privacy caused by the speech, a jury in Maryland awarded him a significant amount of damages.   The Fourth Circuit reversed on First Amendment grounds, ruling among other things that the challenged speech was non-actionable hyperbole.

The Supreme Court affirmed the Fourth Circuit’s result. Instead of relying on the Fourth Circuit’s rationale, the Court found the IIED tort to be too potentially invasive of First Amendment freedoms.  Some observers predictably cursed the Court for “condoning” the speech of the Westboro Church, but the Court did nothing of the kind.  It recognized that caustic, hurtful speech is part of our constitutional protection and that affirming the jury award in this case would put that protection at risk.

But others with more than superficial knowledge of the First Amendment may have wondered:  why didn’t the Court find a way to affirm First Amendment precedent and yet permit the father to keep his tort award?  Aren’t there ways to give both speech and tort law their due?  Perhaps the Court could have ruled: the Marine’s father, as a private citizen subjected to behavior that the church group clearly knew would be upsetting, has enough of an interest to outweigh any concern about freedom of speech.

Justice Alito, dissenting, thought so, but none of the other Justices did.  The thrust of the Court’s decision was a concern not about the merits of the challenged speech but about its subject matter – a concern that it related to “the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy,” all “matters of public import.”  To subject “public speech” to the vagaries of the emotional distress tort – with its decidedly spongy element of “outrageousness” – would license jury members to punish unpopular speech in the guise of finding it outrageous.  The intrusion tort failed as well; the father’s claim to “captive audience” status fell flat because the picketing was remote from the service and caused no interference.

The Court’s decision had the ring of an earlier decision, Bartnicki v. Vopper, where a radio talk show host came into innocent possession of a tape of a cell phone conversation that someone else had intercepted and recorded illegally.  In the call, two union organizers colorfully discussed an upcoming vote in a matter that had caught the public’s attention.  The talk show host broadcast the contents of the tape.  When the cell phone speakers sued the host for invading their privacy by airing the tape in violation of state and federal wiretapping laws, the Court affirmed a decision throwing out the case.  Because the subject matter of the cell phone conversation involved a matter of public concern, the act of broadcasting it to the public, even with knowledge that someone else had illegally intercepted it, was protected by the First Amendment, despite the clear-cut privacy interest of the plaintiffs.

Snyder and Bartnicki are perhaps vulnerable to criticism that courts should not be in the business of deciding which speech qualifies as involving “a matter of public concern” and which does not.  Can judges engage in this categorizing without the influence of their own political sympathies? Similar concerns have been expressed in the field of reporter’s privilege.  Some say that judges, when deciding whether to order a reporter to identify the source of a particular story, should weigh the story’s value against its potential harm.  But others ask whether this is an appropriate inquiry for judges, with its inevitable questions of value.  In libel cases of the 1970s, Justice Thurgood Marshall and Justice Lewis Powell voiced doubts about “entrusting” similar questions to the “conscience of judges.”  They seemed to fear that courts could and would mask political judgments in applying the framework.  Justice Powell eventually set aside his concern.  In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., he wrote for a plurality that the designation of speech as “public” or “private” was a necessary element of libel analysis.  Seeming to bow to the inevitability of judicial classification of subject matter, Justice Powell decided that the speech in Dun & Bradstreet involved a matter of private concern, meriting lesser First Amendment protection.  Justice Powell’s analysis prompted an ardent dissent from Justice Brennan that the matter was public.

In Snyder, the split between majority and dissent involved the same question.  Division over characterization of this kind can be unsettling, and the question of judicial role is real.  For that reason, my preference would have been for the Snyder Court to take the Fourth Circuit’s approach, which was somewhat less reliant on “public speech” analysis — and decide that the speech at issue was hyperbole and not subject to suit.

It goes without saying that much First Amendment jurisprudence at least initially annoys the public.  Speech cases involve a wide spectrum of characters, many of whom are anything but noble.  Countries with different histories strike different balances between speech and tort interests.  In our tradition, although Justices Holmes and Brandeis long ago acknowledged that speech is not an absolute, the range of its protection is broad and deep, and rightfully so.

The full opinion can be found here.

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