In an overwhelming victory for free speech, the Supreme Court of the United States ruled today that the First Amendment protects speakers, even when their speech is truly “outrageous,” against lawsuits for intentional infliction of emotional distress. In Snyder v. Phelps, eight members of the Court (with Justice Samuel Alito as the lone dissenter) upheld the United States Court of Appeals for the Fourth Circuit’s overturning of a multi-million dollar damages award against the Westboro Baptist Church (WBC) for picketing at the military funeral of Marine Lance Corporal Matthew Snyder. The majority opinion—and its affirmation that speech on public property cannot be punished simply for being shocking, offensive, or controversial—reaffirms decades of the Supreme Court’s First Amendment jurisprudence. The opinion thus serves to further safeguard free expression at our nation’s public universities. However, the narrowness of the Court’s ruling may leave vulnerable some types of incendiary speech.
Today’s opinion, penned by Chief Justice John Roberts, focused in large part on the public nature of the WBC’s speech. Roberts acknowledged that “[w]hether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern.” Because the WBC’s speech concerned the military, religion, and America’s stance on gay rights, the Court held that the church’s expression—however distasteful it may be to many—touched upon matters of public concern. The WBC also conducted its nonviolent protest at a public place adjacent to a public street, and the Court found that this kind of “public” speech deserves the highest degree of First Amendment protection. According to the Court, “[t]he First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'” Roberts’ refusal to consider the speech to be purely private, even though its delivery coincided with a funeral, demonstrates the Court’s continuing commitment to protecting debate on issues of public importance.
The Court also demonstrated the continuance of its deep commitment to protecting speech regardless of its content or viewpoint. According to the majority, subjecting speech to liability because it is “outrageous” enough to inflict severe emotional distress permits a “highly malleable standard” to govern which speech can be saddled with crippling civil penalties. The Court concluded that this subjective standard would surely tempt jurors to punish only those viewpoints which they find abhorrent, and that this possible result poses an unacceptable risk of viewpoint discrimination.
Finally, the Court affirmed that the “captive audience” doctrine did not undermine the protected status of the WBC’s speech. The Court held that the captive audience doctrine, which diminishes the constitutional protection afforded to speech when its audience cannot turn away, must be used sparingly. According to the Court, the burden is incumbent upon listeners to avert their eyes and ears from speech they dislike. The WBC picketing occurred 1000 feet away from the funeral at a location arranged by local law enforcement in accordance with Maryland statutes, and Matthew Snyder’s father, whose grief is unquestionably profound and significant, testified that he could not read the WBC’s signs and only learned of their content that evening, hours after the funeral’s conclusion.
There are some aspects of the opinion, however, that may eventually serve to undermine robust protection of free speech rights. Because the Court focused heavily on the importance of public discourse as a rationale for broad free speech protections, the protected status of private speech cannot be fully discerned from the opinion. This is a potential concern because the Court’s test for determining when speech is public remains murky. A balancing test to determine whether speech is public or private, based on factors like the content of the speech and where it is uttered, could introduce further uncertainty to this area of the law, and may result in a chilling effect on speech that has elements of public discourse but also contains private aspects. Another problematic aspect of the opinion is the Court’s apparent reliance on the fact that the WBC’s speech “did not use profanity.” However, profanity is surely protected speech, as “one man’s vulgarity is another’s lyric,” according to the Supreme Court’s famous decision in Cohen v. California, 403 U.S. 15, 25 (1971). The WBC’s lack of use of profanity should not have mattered to the outcome of this case. Finally, both Chief Justice Roberts’ majority opinion and Justice Stephen Breyer’s concurring opinion explicitly reserve the question of whether the WBC’s speech would be treated differently were it posted online. In a footnote, the majority opinion remarks that “an Internet posting may raise distinct issues in this context,” and, emphasizing his perception of the narrowness of today’s holding, Justice Breyer’s concurrence makes clear that the ruling does not “say anything about Internet postings.” These remarks raise the worrying possibility that the Court would have treated online speech differently, and possibly afforded it less protection.
Despite these concerns, the majority opinion is nevertheless a victory for the First Amendment, and concludes with a true vindication of our free speech rights. The majority states:
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.
College administrators would be well served in appreciating the import of Snyder. As FIRE argued in our amicus curiae brief—filed in support of defendants, authored by esteemed Professor Eugene Volokh, and joined by distinguished law professors Nadine Strossen, Ash Bhagwat, David G. Post, and Martin H. Redish—a ruling against free speech in this case would have had a severe chilling effect on speech on our nation’s campuses. Snyder is a reminder that those whose feelings are hurt by speech, especially speech on matters of public concern and debate, cannot seek to punish the speaker as a way to ease their emotional distress.
The Supreme Court opted to protect a very important principle—that of sheltering nonviolent speech from civil damages—even in the face of speech that was emotionally painful to the family of a soldier killed fighting for this country. The right of freedom of expression is too important to remove its constitutional protection, even where the audience is severely affected by the speech. Subjective standards like “outrageousness” cannot be used to punish speech because the temptation will be too great to discriminate against unpopular speech, the very speech in most need of First Amendment protection.