Wednesday, October 6, 2010
The Court heard oral arguments (transcript here) in Snyder v. Phelps this morning, an appeal involving the First Amendment right to protest juxtaposed against a tort judgment for intentional infliction of emotional distress. Background on the case below; update above.
Arguing for Albert Snyder, the father of the soldier, Sean Summers stressed "the private targeted nature of the speech" as removing it from First Amendment protection and allowing a tort award for intentional infliction of emotional distress. Some highlights from the oral argument revolved around the applicability of Hustler v. Falwell and issues regarding public figure and speech on a public matter. The hypothetical posed by Sotomayor was repeatedly referenced:
JUSTICE SOTOMAYOR: . . . in terms of infliction of emotional distress. If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America's doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?
Because the 1988 case of Hustler v. Falwell is the only intentional infliction of emotional distress/First Amendment case decided by the Court, a fact that Summers was repeatedly reminded of during his argument, Summers sought to distinguish the case, which involved a parody of Jerry Falwell done by Hustler Magazine.
MR. SUMMERS: I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you -- if you -
JUSTICE BREYER: Compelling.
MR. SUMMERS: Or at least reasonable, rational connection. In this case they don't even claim there is a connection. They just used this moment to hijack someone else's private event when they are grieving over a 20-year-old child's funeral.
Kagan isolated a passage from the case in an attempt to focus the issue:
JUSTICE KAGAN: Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this. It says: "Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression."
How does that sentence -- how is that sentence less implicated, in a case about a private figure than in a case about a public figure?
In the oral argument on behalf of Fred Phelps, by his daughter, Margie Phelps, Justice Kagan acknowledged Ms. Phelps as a participant in the picketing that was before the Court, by asking
suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day. Does that person not have a claim for intentional infliction of emotional distress?
Justice Scalia invoked the doctrine of fighting words at several points, including this partiocularly feisty exchange:
JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.
MS. PHELPS: We agree that fighting words are less protected under the First Amendment.
JUSTICE SCALIA: Unprotected.
MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social -
JUSTICE SCALIA: Is that so? Do we know that?
MS. PHELPS: I beg your pardon?
JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.
While Phelps at times argued that Mr. Snyder had made himself into a public figure, ultimately Phelps insisted that the doctrine was one of speech on public issues: "the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues. Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues."
However, Sotomayor did not appear to be satisfied by that distinction as applied:
JUSTICE SOTOMAYOR: What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter. Because you are talking about them raising Matthew [Snyder, the decedent] for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.
At what point and how do we take personal attacks and permit those, as opposed to -- I fully accept you're entitled in some circumstances to speak about any political issue you want. But what's the line between doing that and then personalizing it and creating hardship to an individual?
At what point? That is precisely the question that the Court will decide.