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October 06, 2010

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John Nelson

Mr. Massey,

Interesting prediction. I like it.

Here's a question -- do you think the opinion will be tempered with a free speech bar set so high that the plaintiff in these types of tort cases will have a high burden of showing the speech specifically targeted the victim/plaintiff?

Calvin Massey

Mr. Nelson,
I don't think so. I assume that the free speech bar is overcome by proof by a preponderance of the evidence that the speech involved would strike a reasonably objective observer as primarily directed to the victim to deliver emotional injury, rather than primarily to comment on issues of public concern. that does not seem to me to be a high bar, but I do wonder how workable it would be in practice. In the end, it might not be sufficiently protective of free speech. As is said, hard cases can make bad law.

John Nelson

Mr. Massey,
I think it will be interesting to see how it comes out. There is a free speech line to walk where you protect someone's right to speech but at the same time protect a listener's right to be free from harm.

This seems to have some parallels with the free speech implications for defendants in defamation cases. Even so, it also seems that actions taken to directly target someone with speech so that they become emotionally distressed are more than just speech.

I feel terrible for the Marine's father, and I abhor Phelps and his church. (Phelps, btw, was a civil rights legal pioneer back in the day. Very odd.) Even so, I do not think a preponderance of the evidence should go in his favor on the tort claim based on the (admittedly scant) facts I've heard. Then again, anytime you go to a jury you roll the dice.

Howard Wasserman

Boy, I hope your wrong. I read the transcript, but cannot tell whether the justices were playing an intellectual game or genuinely are thinking about creating dangerous First Amendment precedent. The standard you suggest is troubling because of the vagueness of "moment of vulnerability." Am I uniquely vulnerable if I have a court case that brings me into a courthouse to be confronted by Mr. Cohen's jacket? Plus, would this cover speech on the internet (the epic poem) or seen on TV or only speech in some close proximity?

And one more thing: Is there even a question of fact as to whether the standard is satisfied here--given that Snyder did not see the protesters, did they really invade his tranquility?

John Nelson

Mr. Wasserman,

The standard Mr. Massey references is the IIED standard. IIED is possibly the most difficult intentional tort to prove.

So the vague standard on its face has been fleshed out across the various states that have IIED.

Even so, this is an interesting area where the First Amendment has butted against common law torts. The last time that happened was with defamation -- and defamation lost.

Bernie Burk

I'm going to test a different limb of the same tree, and predict that Prof. Massey's prediction won't come to pass. If the standard were to be what he predicts, there would be no need for a new trial--the record facts are undisputed that the Snyders were unaware of the protest until well after the funeral was over. Scalia pointed this out in one of his questions. Unless the "point of vulnerability" is going to extend in time and subject matter far more broadly than taunting someone at a funeral--which would intrude on vast amounts of offensive but previously protected speech--that won't work.

What I don't understand is why no one is focusing on the constitutional interpretation issue this case raises. In the "crush" case last term, the originalists on the Court were at pains to point out that there are only a few traditional categories of expression exempted from the First Amendment's generally sweeping protective scope--fighting words, obsecenity, provably false statements of fact, threats, etc.--and even though the "crush" video and the cruelty it depicted were horrific, the Court was not at liberty to add new categories of unprotected expression. Here it seems to me that the Court must do exactly that to allow the Plaintiffs to have any chance of recovery.

When you actually confront the facts of this exceptionally difficult case, what you get is volcanically offensive speech that neither disrupted the plaintiffs' seclusion or a narrowly defined moment of vulnerability, nor was even directed personally at the plaintiffs or their decedent. Without a lot of confidence, I expect a majority to swallow hard, and affirm on that narrow ground, possibly with some broader language that the Court leaves to another day how facts that did involve personally directed communication at a special moment of vulnerability would square with the existing analogous exceptions like fighting words, obscenity and true threats.

John Nelson

I agree that if the actions of the Phelp's Church are viewed as speech then the court will likely find it to be protected.

The question is whether the justices will be motivated enough to carve out these actions as non-speech and therefore throw them into another category of protection/non-protection.

This is difficult for many reasons. Here, the speech in question may be considered the exact kind of speech traditionally provided the most Constitutional protection -- political speech.

However, by removing all speech from the reach of the IIED doctrine then, in essence, you are removing the ability of someone to recover for real damage suffered as a result of intentional efforts to inflict emotional distress.

Will the justices choose to try and walk the fine line of creating a test or method for proceeding in these difficult cases?

Or will they decide to draw a bright free speech line and, potentially, damage the chance of winning any future IIED cases?

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