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.
that is, the state’s police power interest in protecting the public from harm
through tort liability, has a large effect on the outcome of the balancing
test. Indeed, misappropriation of proprietary speech trumps the other factors,
as clarified by cases such as Zacchini v. Scripps-Howard Broadcasting and
Harper & Row v. Nation Enterprises, which allowed liability for publication
of plaintiff’s proprietary circus stunt and a stolen copy of Gerald Ford’s
Watergate memoirs, respectively. The Court honed in on the “actual damages”
sustained by the plaintiffs in these cases, as opposed to injury consisting of
merely “feelings or reputation,” recognizing the state’s higher interest in
protecting the former.
will consider these balancing factors in Snyder v. Phelps and raise the
evidentiary requirements for establishing the plaintiff’s claims for
intentional infliction of emotional distress and invasion of privacy
accordingly. The Fourth Circuit failed to do this, deciding instead that
certain forms of speech are absolutely protected by the First Amendment, to
wit: 1) statements on matters of public concern that cannot be proven false;
and 2) “rhetorical hyperbole,” defined as statements employing “loose,
figurative, or hyperbolic language.”
This categorical approach to speech-tort liability has been explicitly
rejected by the Supreme Court in cases such as New York Times v. Sullivan,
where the Court pierced the “label” attached to the “libelous” speech and
considered the balancing factors set forth above. Yet, the Fourth Circuit created categories of
speech immune from all tort liability
as to all plaintiffs, based the
Court’s defamation jurisprudence, with its unique element of objective falsity.
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