Category: Media Law

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A Few Preliminary Thoughts on Snyder v. Phelps

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.

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The Intellectual Property Implications of Marketing a Fictional Product

Every year, law students face exams with characters and products ripped from popular television, movies, and YouTube videos (a wiser course than building a torts or crime problem around your colleagues, see Orin Kerr’s post here).  What is true for the goose is no doubt true for the gander: many may want to buy fictional products from popular culture.  For instance, Omni Consumer Products Corporation, a “defictionalizing” company, licenses real-world versions of popular fictional products like “Sex Panther,” the fictional cologne from Anchorman: The Legend of Ron Burgundy.

An interesting question raised by law student Ben Arrow’s Note Real-Life Protection for Fictional Trademarks (which has garnered lots of attention, see here, here, and here) is whether a use in fiction constitutes a “use in commerce” sufficient to reserve priority rights in a trademark.  Two cases have addressed real-life protection for fictional trademarks: Daily Planet from S.D.N.Y. and Duff Beer from Australia.  Arrow explains that the courts, finding real-life trademark infringements, hand-waived on the priority analysis.  For instance, in Duff Beer, the court assumed that Duff Beer had used the mark (presumably because it is famous and thought the breweries were free riding on, well, something).  But Duff Brewery never sold anything in commerce, because it isn’t real (that is at least true if you buy the fact that Homer Simpson isn’t really drinking anything).  So maybe Duff Beer is not a trademark for anything.  A real-world Duff Beer might not be an infringement after all; you can’t infringe a non-trademark.

Arrow’s article explores if Duff Beer isn’t a trademark, then maybe it’s copyright infringement.  The problem there is that “Duff Beer” is a mere two words and may well be found to be de minimis expression unprotected by Fox’s copyright in The Simpsons (but we don’t know because no court has ever passed on a fictional trademark case brought as a copyright cause of action).  So are fictional marks stuck in a lacuna between trademark and copyright, protected by neither?  Arrow doesn’t think so.  He concludes that because Duff lives in fiction, there’s a kind of cognitive illusion that distorts a relatively simple trademark problem.  Duff Beer is a trademark, but it’s not a trademark for beer, so it doesn’t matter that Duff Brewery is fictional and has never sold a real Duff Beer.  Duff Beer is a trademark for an entertainment product: The Simpsons.  When people see the real-world Duff Beer, they think of The Simpsons and think the show endorses the beer or warrants its quality, or has something to do with the beer.  Arrow ultimately proposes a test for measuring how much of a use in fiction is enough to reserve real-world trademark priority for such a trademark.  Kudos to Arrow on the piece: Bruce Carton “declares this new approach in fictional trademark cases to be known as The Arrow Principle.”

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Ammori on Assange, Free Speech, and Wikileaks

At Balkanization, Professor Marvin Ammori has a thoughtful post on the Wikileaks story.  Professor Ammori, who will be guest blogging with us soon, gave me the thumbs up on reproducing his post.  Hopefully, it will spark some interesting discussion on CoOp.  Here is Ammori’s post:

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burnersracists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to writetell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post. Read More

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The Master Switch

I am reading Tim Wu’s terrific new book on how information industries oscillate between decentralized and consolidated business models and the role that regulatory policy plays in that cycle.  I highly recommend that you pick this up, and hope to organize an online symposium about this important book here on CoOp sometime soon.

There is something that bothers me about Tim’s analysis (or, at least, raises a question). There is no doubt that he is a fan of as much openness as possible, as demonstrated by his support for net neutrality.  More or less, the bad guys in his story are monopolists (AT&T, RCA, Paramount) and the heroes are the rebels who fought them.  In general, I agree with this narrative.  As someone old enough to remember the Bell system, you weren’t missing anything.  But I’m hesitant to embrace this openness norm completely.

The toughest case is the studio system for movies.  The flaws of that vertically integrated oligopoly are not hard to describe.   Actors were bound by long-term contracts that denied them the fruits of their labor (much like baseball players before free agency).  Censorship was pervasive, as Tim correctly points out.  And yet . . .

People still refer to this time as Hollywood’s Golden Age.  Now I concede that movie tastes are not uniformly shared, but if you ask most people when better movies were made, would they say 2010 or 1939?  (OK, that’s not an entirely fair comparison.  1939 was the best year of the studio system, and movies did not have the kind of competition then that they get now.) The point is that the studio system produced outstanding art.  As a result, the issue of how regulatory policy should work (or stay its hand) for information industries is not so simple.

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Chatroulette, Julia Child, and the Virtues of Virtual Friendship

A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.

Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.

Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film.  We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.

The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point.  These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?

To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children.  Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities.  Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card).  If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability.  I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….

Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”

moneyshirt.jpgIt’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.

At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:

Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout

Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.

Photo Credit: Rob Lee/Flickr, Money Shirt.

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Snyder v. Phelps: Intentional Infliction of Emotional Distress and the First Amendment

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.

Read More

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Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort

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.

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William Prosser and the Privacy Torts

I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.