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.”
Justice Breyer takes up dissenting Justice Alito’s concern that the majority’s holding “unreasonably limits liability for intentional infliction of emotional distress to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, even in the most horrendous of such circumstances?” Justice Breyer disagrees with that concern. He explains that the majority’s finding “does not hold or imply that the State is always powerless to provide private individuals with necessary protection.” He find the decision quite narrow, explaining that its finding hinged on the fact that the Snyders could not see or hear the picketing from the funeral ceremony. In Breyer’s view, “To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.” Nonetheless, the Court’s finding leaves significant room for perpetrators of hate-motivated harassment to argue that the First Amendment insulates them from IIED liability.