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NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Thursday, March 03, 2011 ::
2nd day -- and I'm already projectile-vomit-sick of the phrase "even for the speech we abhor." As if that was the debate between the parties and within the Court:
"Gee, should we extend the 1st Amendment even to speech we abhor?"
"Naa -- why should we?
"Hey, let's! It'd be Enlightened! You on board, Alito? -- All right, be that way...."
I'll. Retire. To. Bedlam.
That the 1st Am protects "even speech we abhor" is a given. It was not even remotely contested by Mr. Snyder, or by any amici on his side as far I could tell. (Admittedly, I didn't read them all. If there was an appellant's amicus who argued that the 1st Am protects only speech the majority likes, I hope someone will point it out, so I can give that entity the Doug Piranha treatment: sarcasm, dramatic irony, metaphor, bathos, puns, parody, litotes, and satire.)
No, this case was argued on a simple point: since the Court had already held that the 1st Am bans the use of the tort of "intentional infliction of emotional distress" when the plaintiff is a "public figure," should that ban be extended to all IIED cases where issues of "public concern" are in play (Phelps's view), even when the plaintiff is not a "public figure," or not?
In the event, the Court said little about the "public figure"/"not public figure" distinction, and made the decision turn on whether the defendants, regardless of the outrageousness of their conduct and the "public"-ness vel non of their victim, were "discussing" (ha ha) an "issue of public concern." Thus, the Court fashioned a rule that leaves us wondering whether an IIED tort action can ever be maintained as long as the conduct complained of is part of the expression of a view on a matter of public concern. If Phelps's next stunt is to burn down Snyder's house, while his followers wave signs and chant slogans on issues of "public concern," is there any rule that says such conduct is not protected by the 1st Am? Not in Snyder v. Phelps there isn't. (H/t to colleague Prof. Louis Hensler for the hypo.)
Others are concerned that a Snyder victory here would have opened up to IIED liability certain vulnerable parties such as pastors who preach traditional Christian sexual morality, or pro-lifers whose placards say "baby-killers" or the like. There is no reason why such 1st Am conduct should be held hostage to the Fred Phelpses of the world.
We are assuming that the sermons and the placards are general, that they proclaim teachings, and that they do not name individuals, whose "space" they then invade. But let's change the facts and imagine that a pastor who advocates the age-old Christian and Jewish view that homosexual conduct is sinful takes the expression of this view to a whole new level and holds a demonstration outside a courthouse where Jim A. and Joe B. are having a civil union ceremony, and that they deploy anti-gay chants and placards using Jim's and Joe's full names.
Different ballgame, 1st Am-wise.
That doesn't mean Jim and Joe can automatically recover from this church group in tort. To prevail in an IIED suit, the plaintiff has to prove emotional damage with physical (not just emotional) consequences. That's hard to do, and rightly so -- and you know what? Albert Snyder had done it in the present case. And if Jim and Joe manage it in our new hypo -- well, I'm real sorry for the church group, but I'm especially sorry that they didn't ask me before they engaged in such lunkhead conduct.
Now, about the pro-life demonstrators with their "baby-killer" signs and chants. That's presumptively protected by the 1st Am. But it's been settled law since 1988 that local govt can ban home-specific demonstrations, as long as the ban is content-neutral and therefore fits within the criteria for time/place/manner restrictions. Quite correct, imo. I don't want to unleash the "suburbia debate" here, but as long as suburbia is with us, it seems obvious, and important, that a residential street is not the constitutional equivalent of a downtown street, town green, or public square. And even in those places, t/p/m restrictions can be reasonable. In a residential suburb, "not here, ever" is a perfectly reasonable t/p/m restriction, as long as it's content- and viewpoint-neutral. And the pro-life movement has been living under a modified version of this rule for 23 years and counting.
The range of what the Supreme Court and the nation considered "freedom of speech" under the 1st Am expanded during the 1960s -- but even so, O'Brien wasn't allowed to burn his draft card, given a speech-neutral statute that required him not to. Our notions of free speech today are robust enough, given Citizens United, and even considering Doe v. Reed, given the Alito concurrence (him again!) there. We didn't need to license the outermost outrages of Fred Phelps in order to protect freedoms we should all take for granted, and we are all sullied by thinking we did.
:: David M. Wagner 1:23 PM [+] ::