The following is a guest post from Deana Pollard Sacks of Texas Southern, who's visiting at Florida State right now. Close readers of the faculty lounge may recall that I've written about some of Deana's torts scholarship:
Today the Supreme Court will hear oral arguments in Synder v. Phelps, a case in which the Westboro Baptist Church (consisting of approximately 50 Phelps family members and a few others) used a fallen marine’s funeral to further their message that “God Hates Fags” and the United States is being punished for tolerating homosexuality by, among other things, losing soldiers in Iraq. The Phelpses went further, with numerous personal attacks on the fallen soldier and his family, people who were unknown until the media frenzy that was created by the Phelpses’ hate-filled method of delivering their “Christian” message. This post addresses the Court’s methodology for reconciling tort liability with the First Amendment and identifies the issues that may shape the Court’s opinion in Snyder v. Phelps.
Although lower courts have adopted a categorical approach to speech tort liability, the Supreme Court has never done so. Rather, the Court has consistently engaged a balancing approach to whether tort liability for speech is constitutional. It its numerous speech-tort cases, the Court has revealed a number of factors that weigh in on the balance, primarily: 1) the nature of the speech, 2) the vulnerability of the plaintiff, and 3) the state’s interest in punishing the speech with tort liability. The outcome of the balancing test dictates how high the bar is raised to establish tort liability, that is, how much plaintiff’s prima face case evidentiary burden must be raised to meet First Amendment scrutiny. The Court has tailored evidentiary aspects of various torts’ prima facie cases to reconcile tort and constitutional principles.
New York Times v. Sullivan represents the highest First Amendment bar to tort liability, for a defamation action brought by a public official against critics of his official conduct. The Court raised the evidentiary burdens of plaintiff’s prima facie case considerably, and shifted the burden of proof on truth or falsity, such that tort liability met First Amendment demands. The most celebrated evidentiary modification was upgrading the required fault element from negligence to an intentional state of mind, which the Court called “actual malice,” meaning the defendant knew the statement was factually false or acted recklessly. The Court’s opinion centered on the political nature of the speech, but this factor has been expanded such that rigorous First Amendment protection is generally afforded to speech of “public concern.” The Court extended the high protection for public concern speech to tort claims for invasion of privacy and intentional infliction of emotional distress, and state laws prohibiting publication of information contained in public records in cases such as Barnicki v. Vopper, Hustler v. Falwell, and Florida Star v. B.J.F, respectively.
The vulnerability of the plaintiff is another central feature of the Court’s speech-tort jurisprudence. Gertz v. Welch and Dun & Bradstreet v. Greenmoss clarified that the plaintiff’s vulnerability to injury resulting from defamation has a large impact on how high the bar is raised for the plaintiff to recover for defamation, holding that “private figures” neither assume the risk of caustic, sharp attacks on their character, nor have general access to the media that pubic figures have, for purposes of counter-speech. Private individuals thus carry a lighter evidentiary burden to establish a prima facie case of defamation than public figures, the latter of whom seek out fame or “inject” themselves into public controversies, thereby assuming the risk of character assassination which, if factually false, constitutes defamation.
The elemental differences between defamation and the tort claims at issue in Snyder v. Phelps mandate a balancing test grounded in the claims’ common law elements, not the falsity element unique to defamation liability. This is true notwithstanding Hustler v. Falwell, because that case involved a famous individual whose tort claims arose from umbrage (as opposed to actual damages or physical injury) and – above all – appeared to be an attempt to circumvent New York Times v. Sullivan’s actual malice standard by stating alternative theories of tort liability. Falwell’s real issue was the false representation made about him and his mother – that they had an incestuous rendezvous in an outhouse –a comical satire that appeared intended to entertain readers, not to cause Falwell harm per se. Hustler v. Falwell does not govern Snyder v. Phelps for a variety of reasons based on a review of the Supreme Court precedent on how to balance free speech with tort liability, all things considered.
Snyder v. Phelps may represent the most difficult speech-tort case the Court has encountered to date. The Snyder v. Phelps facts relating to the nature of the speech factor are mixed. The reason is that speech of genuine public concern was mixed with speech that targeted a private individual regarding facts of his private life in an apparent attempt to maximize Mr. Snyder’s emotional injury and unrest. The nature of the speech is thus split – it is partly speech of public concern and partly private information that does not concern the public, such as marital and child-rearing issues. To the extent that certain speech involved in the case was not of public concern, the Court should carefully identify that speech and explain why it was not of public concern, to avoid chilling speech of public concern. As argued below, this is probably unnecessary, as the other balancing factors mitigate toward a mid-level evidentiary standard for Mr. Snyder’s claims, even if the speech involved was entirely speech of public concern, as in Gertz v. Welch, in which the Court adopted a mid-level evidentiary standard.
The second balancing factor seems clearly to favor Mr. Snyder. Unlike Mr. Sullivan or Mr. Falwell, Mr. Snyder was not a public official or media celebrity who intentionally gained general fame and notoriety before the events that gave rise to his tort claims. Even Mr. Gertz was deemed a private figure, despite having written books, being active in the community, and being a well-respected and recognized local attorney. While Mr. Snyder may have had access to the media after the events giving rise to his claims, this cannot establish public figure status, especially since Mr. Snyder not only did not assume the risk of personal attacks, but appears to have been dragged into the controversy against his will and best interests. The state has a greater interest in protecting private individuals such as Mr. Snyder than public figures, because of the risks public figures assume prior to the defendant’s actions that give rise to their tort claims.
The final balancing factor – the nature of the state’s interest in providing a tort remedy – is also mixed. On the one hand, cases such as Zacchini v. Scripps-Howard Broadcasting indicate that actual damages, as distinguished from reputation or emotional harm, means lost profits or other out-of-pocket damages. Although Mr. Snyder’s claims rest on emotional distress primarily, he also claims physical injury, which is the general distinction in tort law between actionable and non-actionable negligent infliction of emotional distress. In tort law, physical injury is considered distinct from pure mental distress for purposes of negligence-based liability similar to the way that the Court has distinguished reputation or emotional injury from actual damages in speech-tort cases. The state has a greater interest in protecting citizens’ physical health than their “feelings or reputation” just as the state has a greater interest in protecting against proprietary harm than emotional harm.
When the Court’s speech-tort balancing factors have mitigated away from the most stringent evidentiary burdens announced in New York Times v. Sullivan, the Court has modified the prima facie case evidentiary burdens to a lesser degree accordingly. For example, the Court in Gertz v. Welch reduced the fault requirement of New York Times v. Sullivan from “actual malice” to negligence, in recognition of plaintiff’s private person status, then added an element of actual damages to avoid going too far in allowing tort liability for speech. The Court could to the same in Snyder v. Phelps, and raise the evidentiary burdens of the common law claims of intentional infliction of emotional distress and invasion of privacy without denying Mr. Snyder’s claim altogether by creating an absolute privilege as the Fourth Circuit did.
--post by Deana Pollard Sacks