Mirror of Justice

Oral argument was held day before yesterday in Snyder v. Phelps, the case in which demonstrators carried signs near a funeral of a Marine saying “God Hates Fags” (Snyder was not gay, but Phelps thinks America is sinful for tolerating gays and God is punishing America for its sins) and “Thank God for Dead Soldiers” among others. If one thing emerged from oral argument, it is that Phelps is going to lose. The only question is what standard the Court will fix upon. From my perspective, this will be one of the few days in the history of the Roberts Court in which we can agree with former Justice Thomas Clark, “There is no war between the Constitution and common sense.”

The result will not be popular with those who never have seen a first amendment claim they did not like. And the usual suspects (the journalistic establishment, the ACLU, a group of First Amendment scholars, the Jefferson Center) filed briefs with the Court distancing themselves from the message of Phelps, but saying that our country stands for the proposition that we protect the speech we hate. Journalists are perhaps the most devoted First Amendment cheerleaders. Lyle Denniston, otherwise an outstanding Supreme Court reporter, allowed his deep affection for the First Amendment to get in the way of his commentary on the case. Denniston says that if passion guides the Supreme Court, that Phelps will lose. On the other hand, he suggests, if judicial detachment could be preserved, perhaps a different outcome might prevail.

Lost in this discussion is the novel character of the legal claim made by Phelps. The tort of intentional infliction of emotional distress has been recognized for more than one hundred years. The claim urged upon the Court in some of the amicus briefs is that there is a constitutional right to deliberately inflict emotional distress on a victim through speech. More plausible, is the argument that the tort is unconstitutional when the speech addresses public issues. The Court held that the First Amendment protected a Hustler Magazine cartoon lampooning Jerry Falwell despite a jury verdict that the cartoon was intended to inflict emotional distress. The Court ruled that public criticism of public figures could not constitutionally be subjected to damages under the tort of intentional infliction of emotional distress.

Phelps argues that the Falwell decision authorizes him to inflict emotional distress on the grieving mourners at a funeral. No doubt Phelps and his followers can carry their signs in public places from sidewalks to parks. The First Amendment is especially concerned to protect dissenters – even lunatic dissenters. But First Amendment law routinely strikes a balance between conflicting values. Speech is balanced against order, reputation, privacy, and intellectual property among others. Sometimes the speech value prevails; sometimes it does not. Here speech needs to be weighed against privacy and the emotional sensibilities of a parent mourning the death of a son. To decide in favor of speech in this case is not to strike a blow for judicial detachment over passion.  It is to preserve the sensibility of eleven decades of tort law over overly broad generalizations about, and an emotional attachment to, a formal, abstract, and confused conception of freedom of speech. To be sure, the First Amendment protects the speech we hate. But it need not and never has protected it anywhere at any time wholly apart from the damage it is intended to cause.

cross-posted at religiousleftlaw.com