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Hastings Law Journal, Issue 64.2 (January 2013)
posted by Hastings Law Journal
Hastings Law Journal, Issue 64.2 (January 2013)
Articles
Plausibility and Disparate Impact
Joseph A. Seiner
Safe Harbors and the National Information Infrastructure
Nicholas W. Bramble
The Rhetoric of Choice: Restoring Healthcare to the Abortion Right
Yvonne Lindgren
Mass Incarceration at Sentencing
Anne R. Traum
The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer
Douglas B. McKechnie
Familial DNA Testing, House Bill 3361, and the Need for Federal Oversight
Dane C. Barca
Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions
Eugenee M. Heeter
The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.
April 4, 2013 at 9:07 pm
Posted in: Law Rev (Hastings), Law Rev Contents
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Democratic Values v. Virtues: Brettschneider on Ordered Liberty
posted by Corey Brettschneider
How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.
James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether. Read the rest of this post »
March 1, 2013 at 2:30 pm
Tags: Free Association, free speech, Political Theory, Symposium (Ordered Liberty)
Posted in: Symposium (Ordered Liberty)
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The Harm in “The Harm in Hate Speech”
posted by Erica Goldberg
Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.
Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.
Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.
July 2, 2012 at 4:24 pm
Posted in: First Amendment
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Initial Thoughts on the Stolen Valor case
posted by Mary-Rose Papandrea
Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment. This is an important First Amendment opinion with lots of points for discussion.
The Stolen Valor Act makes it a misdemeanor to falsely represent oneself as a recipient of military honors. The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.
I will just note a few things that captured my attention after a first read:
Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements. In particular, he relies heavily on the ability of counterspeech to flush out the truth. In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors. Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.
June 28, 2012 at 3:51 pm
Tags: Alvarez, Constitutional Law, false speech, First Amendment, free speech, marketplace of ideas, military, Stolen Valor
Posted in: Uncategorized
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Rules v. Standards Across Constitutional Rights
posted by Erica Goldberg
I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”
This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.
In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.
April 3, 2012 at 11:18 am
Posted in: Constitutional Law, Criminal Procedure, Uncategorized
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Cyberbullying and the Cheese-Eating Surrender Monkeys
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
Introduction
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm
Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0
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Senate Approves Bill To Protect Military Funerals Post Snyder v. Phelps
posted by Josh Blackman
The Senate has approved a bill that would provide additional criminal and civil sanctions for protestors at military funerals. The text of the bill makes changes to two statutes: 18 U.S.C. 1388 (a criminal provision that applies to all funerals of service-members, even at private cemeteries) and 38 U.S.C. 2413 (a civil provision that applies to federal cemeteries).
The bill makes a number of changes to the criminal provision.
First, it makes a number of changes to where and when protests can occur:
Protests are forbidden 120 minutes before, and 120 minutes, after a funeral. Previously, the limit was 60 minutes before and 60 minutes after. Protests are forbidden 300 feet from the location of the funeral. Previously, the limit was 150 feet. Now protests are forbidden not just near the cemetery, but “within 500 feet of the boundary of the residence, home or domicile of any surviving member of the deceased person’s immediate family and includes any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace of the persons located at such location.”
Second, it modifies the potential criminal penalties of protests:
The possible term of imprisonment increased from 1 years to 2 years. Now, the “The Attorney General may institute proceedings under this section.” Statutory damages range from “not less than $25,000 or more than $50,000 per violation.”
Third, it creates private causes of actions in federal courts for aggrieved family members, whereby district courts can issue injunctive relief. Now District Courts have jurisdiction to “to prevent and restrain violations of this section.” The bill would also create specific causes of action that allows members of the immediate family “who suffer injury as a result of conduct that violates this section” to sue and recover damages, costs of suit, as well as “attorneys’ fees.”
What is perhaps most potentially troublesome about this bill is how it defines the offense–rather nebulously. The definition of forbidden activity is quite broad–”includes any individual willfully making or assisting in the making of any noise or diversion that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral.” The bill creates a “Rebuttable Presumption”:
It shall be a rebuttable presumption that the violation was committed willfully for purposes of determining relief under this section if the violator, or a person acting in concert with the violator, did not have reasonable grounds to believe, either from the attention or publicity sought by the violator or other circumstance, that the conduct of such violator or person would not disturb or tend to disturb the peace or good order of such funeral, impede or tend to impede the access to or egress from such funeral, disrupt or tend disrupt to a funeral procession, or disturb or tend to disturb the peace of any surviving member of the deceased person’s immediate family who may be found at the residence, home or domicile of the deceased person’s immediate family on the date of the service or ceremony.
What do you think? Constitutional problems? Vagueness (“peace or good order of such funeral”)? Especially considering the Court’s disapproval of the California statute in EMA that failed to define violence. Will there actually be any federal criminal prosecutions instituted by the Attorney General under this section against the Westboro Baptists? Stay tuned.
Cross-posted at JoshBlackman.com.
June 29, 2011 at 11:52 pm
Posted in: Uncategorized
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For the Love of Hate: Why We Have Little to Fear from the Westboro Baptist Church
posted by Mary Anne Franks
The “marketplace of ideas” conception of free speech is deeply flawed, not least because it unjustifiably presumes a level playing field and equal access. It also gives rise to the notion that there is no harm in giving false ideas free run because the truth will win out in the end. This myth was debunked by none other than John Stuart Mill, often credited as the father of the marketplace model of free speech: “[T]he dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution.”
However, as the saying goes, even a stopped clock is right twice a day. The naive – often disingenuously so – belief that “the true and sound will survive” while “the false and unsound will be vanquished” is occasionally vindicated, as it is in the case of the Westboro Baptist Church. The Church may have “won” in Snyder v. Phelps, but in a much more important sense, it has lost as spectacularly as any hateful group in recent history. One is hard pressed to find a group more universally hated across the ideological spectrum than the Westboro Baptist Church. Vocal critics of the Church include Bill O’Reilly, Sarah Palin, Michael Moore, and Jon Stewart. Numerous Christian organizations have condemned Westboro, as has the Ku Klux Klan (that’s right – the Ku Klux Klan finds Westboro’s practices too extreme). As of today, none of Westboro’s charmingly-named sites (godhatesfags.com, godhatesyou.com, priestsrapeboys.com, etc.) is accessible online, thanks to the efforts of either the hacking collective Anonymous or a self-proclaimed adversary of Anonymous who calls himself The Jester. Anonymous is currently under investigation for attacking MasterCard and Amazon on behalf of Wikileaks; The Jester claims responsibility for the cyber attack on Wikileaks last November. In other words, perhaps the most extraordinary thing about the Westboro Baptist Church is its ability to serve as a common target for groups who passionately disagree with and even hate each other.
March 8, 2011 at 6:38 am
Posted in: Constitutional Law, Current Events, First Amendment, LGBT
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Thoughts on Snyder v. Phelps and Future Cases
posted by Danielle Citron
Thanks so much to Professor Neil Richards (who generously serves as our First Amendment guest expert) for his thoughts on Snyder v. Phelps. This post aims to build on his insights and contemplates the opinion’s implications for cases of targeted online hate. In Snyder, Justice Roberts, speaking for the majority, underscored that speech on public affairs “occupies the highest rung of the hierarchy of First Amendment values” and thus deserves “special protection.” The majority contrasted speech on “matters of purely private significance,” explaining that it enjoys less rigorous First Amendment protection because restrictions on such speech fail to threaten “meaningful dialogue of ideas” or to risk “‘self-censorship’ on matters of public import.” Seemingly reflecting its intention to chart a wide territory for matters of public import to provide breathing speech for public discourse, the majority provided select, narrow examples of purely private speech, such as an individual’s credit report and videos of someone engaging in sexually explicit acts. The majority found that the Church engaged in speech on public affairs because it critiqued broad policies such as the government’s stance on gays in the military (even though some of its signs did target Matthew Snyder and his family) and because the protest occurred in a “public place adjacent to a public street,” the archetype of a traditional public forum that enjoys special First Amendment protection.
The majority rejected the Snyder family’s argument that the protests constituted personal attack on private individuals because Westboro had long spoken on the subjects addressed in its picketing and because “no pre-existing relationship or conflict” existed between Westboro and the Snyders that might suggest that “Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.” In other words, the Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack. Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely“ private ones. Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.
Consider a neo-Nazi group’s online harassment of Bonnie Jouhari. Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl. They revealed her home address and her child’s picture. The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.” Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose. Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder. With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted. They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection. Justice Breyer, in concurrence, alluded to just such a problem. Breyer asked: “suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.”
March 6, 2011 at 2:44 pm
Posted in: Constitutional Law, Cyber Civil Rights, First Amendment, Tort Law
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A Few Preliminary Thoughts on Snyder v. Phelps
posted by Neil Richards
This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy. The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections. (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)). Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court. In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm. As the Chief Justice concluded:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting. First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent. In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury. Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure. What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected. The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family. Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.
The second aspect of this case that’s notable is what it says about tort liability and free speech. Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate. Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern. The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim. The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law. Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here. (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal). So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.
There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open. For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.” But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is. Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion. The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content. In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail. The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question. This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice. It is interesting to see the Court treading warily in the Internet speech context, however.
The third notable aspect of this case is Justice Alito’s dissent. Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them. Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment. Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.” But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content. It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle. If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.
Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory. The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction. If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue. So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.
March 2, 2011 at 6:06 pm
Posted in: Constitutional Law, Courts, Current Events, Cyber Civil Rights, First Amendment, Media Law, Privacy, Supreme Court
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Snyder v. Phelps: Intentional Infliction of Emotional Distress and the First Amendment
posted by Daniel Solove
In a previous post, I analyzed the intrusion upon seclusion claim in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a case where the Supreme Court recently granted certiorari.
Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers. Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq. The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality. Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.” A jury found for Snyder, awarding him millions of dollars in damages. The Fourth Circuit reversed on First Amendment grounds. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).
In this post, I’ll analyze the intentional infliction of emotional distress issues. The tort provides:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Restatement (2nd) of Torts, Sec. 46.
Here are the questions being considered by the Supreme Court:
1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?
2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?
3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?
I’ll address each in turn.
1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?
Hustler Magazine, Inc. v. Falwell, 485 U.S. 86 (1988) involved a parody ad consisting of a fake interview between the Reverend Jerry Falwell and his mother, suggesting he had sex with his mother. He won a jury verdict for intentional infliction of emotional distress. The Supreme Court held that the First Amendment barred liability unless Falwell (a public figure) proved actual malice:
We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.
In Snyder v. Phelps, the district court had applied the standard in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which provides an exception to the actual malice standard for “private figures.” But the Fourth Circuit reasoned that Phelps’s speech involved a matter of public concern and wasn’t directed specifically at Snyder. Whether Snyder was a public or private figure was irrelevant.
March 16, 2010 at 3:04 pm
Posted in: First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming)
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Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort
posted by Daniel Solove
The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues. The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.
Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers. Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq. A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages. The total damages were reduced by the court to $5 million.
The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality. Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”
Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.
The Fourth Circuit reversed on First Amendment grounds. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).
In this post, I’ll focus on the intrusion upon seclusion tort. I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Restatement (Second) of Torts 652B.
Generally, intrusion doesn’t involve speech. It involves invasive actions — snooping, surveillance, trespassing.
Where was the intrusion in this case?
The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees. It is not clear that there was any disruption of the funeral.
Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion. But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy. The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected. But what is notably missing are facts alleging how the protest invaded the funeral itself.
I would like to know precisely what facts establish the intrusion upon seclusion claim. Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met. This isn’t a First Amendment issue — it involves whether the requirements of the tort are met. Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.
Click here for my analysis of the intentional infliction of emotional distress claim.
March 16, 2010 at 10:58 am
Posted in: First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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More on engaging “insane” views
posted by Howard Wasserman
Paul Gowder took the comments from my post about debating Westboro and the Phelps into his home forum. I wanted to respond more fully here. At one level, I think we are misunderstanding one another; at another, we are proceeding from different premises.
First, Paul writes that the Phelps message of “God hates fags” is a “foul, false, and offensive message.” True enough, but so are a lot of other messages and a lot of other speakers. Later, Paul argues that there is a difference between “non-mainstream but sane views (consider the various versions of anarchism, on both the socialist and the capitalist side) and completely nutso views.” As I said in the Comments, the whole point of my first post was to find the line between those two. Lots of messages are foul, false, and offensive and lots of messages–how do we decide which ones are OK to engage with?
Paul insists that “I know it when I see it” is close enough and, ultimately, all we have, since a meaningful objective line is impossible. And he probably is right. Of course, some people would have a very different views of the “sanity” of the Church’s views or, say, the views of the KKK or the views of many other speakers. This subjectivity works at the level of one individual’s choice about whom to engage with in a debate–my history professor’s flat refusal to sit down with deniers.
But it becomes problematic when it is the government doing the defining. And it is a short step from saying that a group is too insane to include in a debate than to saying it is too insane to be given access to a public forum where people will have to encounter that group’s expression–which will require a government definition. As I noted in the first post, that is the gravaman of the criticism directed at FIU by some faculty and students over allowing the Genocide Awareness Project onto campus–the group’s views are “non-mainstream-and-insane” and it was inappropriate to allow them onto campus and subject unwilling members of the FIU community to their “foul, false, and offensive” images of aborted fetuses and specious analogies.
November 3, 2008 at 8:34 pm
Posted in: Uncategorized
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Defining what is beyond the pale of public debate
posted by Howard Wasserman
Last weekend, the Stonewall Legal Alliance at FIU College of Law hosted a day of panels on Florida’s Amendment 2, a ballot initiative amending the state constitution to define marriage as a union of one man and one woman and prohibiting creation of substantially equivalent unions. At the heart of the event was a debate between my friend and colleague Professor Jose Gabilondo (Stonewall’s faculty adviser) and Marge and Shirley Phelps of the Westboro Baptist Church–an anti-(inter alia) gay rights group best known for picketing at the funerals of fallen soldiers.
The invitation was met with anger and criticism from all sides. Some on the left argued the invitation gave Westboro legitimacy in the public debate that it did not deserve. Jose has told me that he received letters of protest from a number of groups, including the Anti-Defamation League and the Southern Poverty Law Center, as well as letters from individuals directly critical of him. Requests were made to both the COL and University administrations to intervene and rescind the invitation. And some campus student groups were urged by administrators not to attend the event so as to avoid being confronted by insulting words and ideas. Some on the right complained that inviting Westboro to present the pro-Amendment 2 position was stacking the rhetorical deck in the anti-amendment side’s favor, because the opponent is incapable of presenting the “true” intellectual arguments against same-sex marriage and can do nothing other than turn the event into a circus that will horrify observers into opposing the ballot proposal and make Prof. Gabilondo’s anti-amendment arguments look better.
Jose discusses the controversy here, including a strong defense of uniquely open intellectual exchange in a university setting, including the presence of non-”mainstream” speakers and views. (And, to the extent it matters, Stonewall invited a number of local and national amendment supporters, all of which declined the invitation.
November 3, 2008 at 6:43 am
Posted in: Uncategorized
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Public vs. Private: Funerals, Free Speech, and Privacy
posted by Daniel Solove
Timothy Zick recently blogged about a lawsuit by a parent of a deceased soldier against a fundamentalist religious group that protested near the funeral. The religious group has been protesting near several funerals for soldiers, and their message is particularly offensive: The group claims that the soldiers died as punishment for a society that permits homosexuality. Read Timothy’s post for more background about the case.
The verdict is now in. From the AP:
A grieving father won a nearly $11 million verdict Wednesday against a fundamentalist Kansas church that pickets military funerals out of a belief that the war in Iraq is a punishment for the nation’s tolerance of homosexuality.
Albert Snyder of York, Pa., sued the Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Lance Cpl. Matthew Snyder, who was killed in Iraq.
The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress. . . .
Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as “Thank God for dead soldiers” and “God hates fags.”
Snyder claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.
While the amount of the verdict strikes me as far too excessive, I am pleased that the plaintiffs won (from what limited information I’ve read about the case). I would like to respond to Timothy Zick’s very thoughtful and compelling argument for why the speech of the protesters should win out over the interests of the family holding the funeral. Timothy argues:
November 1, 2007 at 12:29 am
Posted in: First Amendment, Privacy, Tort Law
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Funerals and Free Speech
posted by Timothy Zick
First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.
In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their “message” is that God is killing American soldiers to punish the United States for “condoning” homosexuality. The protesters tend to stand — peacefully for the most part, but quite noticeably — on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like “God Hates Fags” and “Thank God for Dead Soldiers.” The protesters’ presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of “funeral protests.” The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.
One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of “robust and wide open” debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most — in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries — i.e., whether a 200- or 500-foot “buffer zone” is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.
October 30, 2007 at 3:50 pm
Posted in: First Amendment
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