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Thank you to Eugene for inviting me to guest blog on The Volokh Conspiracy this week. By way of introduction, I am a First Amendment lawyer and the president of the Foundation for Individual Rights in Education (FIRE), and my new book, Unlearning Liberty: Campus Censorship and the End of American Debate, hit the bookshelves just last week.
As some readers know, Eugene has taken a special interest in campus censorship. He has frequently highlighted FIRE’s work on this blog and was a keynote speaker at our 10th Anniversary Dinner. We have also worked together on a couple of cases, including State v. Drahota and Snyder v. Phelps.
This week, I will be writing about the reality of campus censorship, the prevalence of campus speech codes, and numerous shocking stories that show how even relatively tame and uncontroversial speech is targeted. Look for my next post to see some remarkable cases of campus censorship.
But I will also be going beyond the laundry list of horror stories and discussing the many ways in which campus censorship harms us all. As I discuss in my book, I believe that it damages our greater society in two distinct ways.
Mills said in a Wednesday statement that the case is a civil action between private parties and that the state generally does not take sides in such matters….
“The utterances at issue in the Snyders’ claim for damages were offensive and outrageous,” Mills said in the statement. “But the First Amendment does not allow us to distinguish between polite speech and hateful or outrageous speech.
No decision of [the Supreme] Court has ever exempted a non-media defendant from generally applicable state tort law on First Amendment grounds.
That assertion is factually mistaken: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), held that non-media defendants could not be held liable for their speech under the generally applicable state tort law of interference with business relations.
And beyond this, Citizens United v. FEC, 130 S. Ct. 876, 905-06 (2010), expressly “‘reject[s] the proposition that the institutional press has any constitutional privilege beyond that of other speakers’” (adopting the reasoning of Justice Scalia’s dissent in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 691 (1990), and of Justice Brennan’s dissent in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985); Dun & Bradstreet involved state tort law). I’m disappointed that so many state attorneys general, of both parties, are willing to reject this, and to treat “institutional press” speakers as getting more First Amendment protection than other speakers have. And of course their position would have to deal with what Citizens United gave as one of the reasons for its conclusion: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Is this blog part of “the institutional press”? Or should it get less protection than, say, various Slate or Salon columns, or posts on National Review Online‘s The Corner?
For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) some passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the arguments that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral, that the liability is justified because the Phelps’ speech interfered with Snyder’s own religious freedom, and that the liability is justified because the Snyders are private figures. Today I close by blogging about the invasion of privacy tort claim.
The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. It seems unlikely that the Court will consider the invasion of privacy claim, because it doesn’t seem to be within the scope of the questions presented by the certiorari petition. Nonetheless, I thought I’d briefly speak about it here.
“Invasion of privacy” covers several torts, but only one led to liability in Snyder: “intrusion upon seclusion.” The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses, or even whether it expresses a message at all. The Restatement of Torts illustrations are entering a patient’s hospital room to take a photograph over the patient’s objection, photographing through someone’s bedroom window through a telescope, tapping someone’s phone, getting someone’s bank records using a forged court order, and calling someone every day for a month at inconvenient times. The tort is constitutionally sound precisely because it focuses on physical conduct, not communication.
For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) some passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the arguments that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral, and that the liability is justified because the Phelps’ speech interfered with Snyder’s own religious freedom. Tomorrow I’ll also blog on the invasion of privacy tort claim.
In this post, I want to discuss the plaintiffs’ analogy to libel law, and the public/private figure distinction. Others suggest that, just as speech that defames private figures is less protected under libel law, so speech that distresses private figures should be less protected under the emotional distress tort. The analogy would not support punitive damages for outrageous speech, since the rules for punitive damages in libel law are the same for private figures and public figures. But it might be offered to justify compensatory damages liability.
But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues.
For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) more passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the argument that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral; ; later this week, I’ll also blog on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here.
In this post, I want to discuss the plaintiffs’ religious freedom argument. Some commenters, including the plaintiffs in their petition for certiorari, defend the multi-million dollar verdict against the Phelpsians on the grounds that it protects the plaintiffs’ own freedom to conduct their own religious ritual — a funeral — without interference. And indeed a content-neutral law that banned, say, loud noises outside a funeral would be constitutional.
For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) more passages: Yesterday, I blogged about Hustler v. Falwell and why it applies here; later this week, I’ll also blog on the Snyders’ religious freedom argument, on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here. In this post, I want to talk about attempts to distinguish Snyder from Hustler, and in particular the argument that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral — spacial and temporal proximity as to the picketing (which was 1000 feet from the funeral), and temporal proximity as to the Web site (which was posted around the time of the funeral).
In my experience, defenders of liability in Snyder v. Phelps generally agree that the speech in the scenarios I describe (for instance, publication of the Mohammed cartoons) should remain protected. They generally argue that the matter is obvious enough that speakers need not even fear the possibility of liability in such scenarios. To yield this result, they try to offer limiting principles that supposedly make sure the tort will stay narrow. But none of those principles are actually embodied in the tort as it is currently defined, and as its terms were conveyed to the jury in Snyder.
For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. Over the next few days, I’ll post (and combine using the Snyder v. Phelps tag) more passages, on the proximity to a funeral / time, place, or manner restriction argument, on the Snyders’ religious freedom argument, on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here.
If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm.
But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.
Cardozo Law Review‘s de•novo online supplement is doing a symposium on the forthcoming Snyder v. Phelps case, and I agreed to write a short (9-page) essay expressing my views.
This is by design a short and therefore somewhat cursory treatment; I wouldn’t have had time to write a more detailed one, and in any event the symposium format calls for short essays. But I hope it makes its arguments as well as possible given the space constraint; so I was hoping to hear our readers’ feedback about it. If you’re interested in having a look at the piece and posting or e-mailing your thoughts, that would be great.
The Fourth Circuit essentially concluded that, at least where speech on matters of public concern is involved (see pp. 25-26), the First Amendment precludes liability based on “statements on matters of public concern that fail to contain a ‘provably false factual connotation’” (see pp. 16-20). This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within “one of the categorical exclusions from First Amendment protection, such as those for obscenity or “fighting words‘” (p. 18 n.12) it might be actionable. But if it’s outside those exceptions, then it can’t form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it’s “offensive and shocking,” or whether it constitutes “intentional, reckless, or extreme and outrageous conduct causing … severe emotional distress” (p. 23).

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