Guest Blogger Robert Rabin: "The Legacy of New York Times v. Sullivan: Time for a Reassessment?"

A soldier is killed in Iraq, serving his country; his grieving father arranges a funeral service and burial in the nearby cemetery of their hometown church; a publicity-seeking religious sect, dedicated to hateful religious and homophobic disparagement, as well as denigration of the U.S. government and its military efforts, pickets the funeral service. Due to this arresting set of factual circumstances, Snyder v. Phelps, an intentional infliction of emotional distress claim by the dead soldier’s father against the leader and members of the sect, was afforded considerable media attention—triggering widespread outrage in support of the victimized father. Despite the outpouring of sympathy, however, when the case reached the U.S. Supreme Court, the Circuit Court of Appeals decision overturning a jury verdict in favor of the plaintiff was affirmed, 8-1, on First Amendment grounds, Snyder v. Phelps, 131 S.Ct. 1207 (2011).

 Snyder is, in fact, an easy case, in my view. When an individual or organized group engages in speech about a matter of public concern, the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) has generated more than a half-century of precedent standing for the proposition that tort victims’ common law rights are substantially limited. The authority of Times—the power of its articulation of the values promoted by free and robust public discourse—has spilled beyond the borders of that Civil Rights-era defamation claim by southern officials against a widely-respected national newspaper to related tort areas of protection of personality: privacy (Time, Inc. v. Hill, 385 U.S. 374 (1967)) and intentional infliction of emotional distress (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).

 Snyder is firmly in that tradition—and it is an easy case because it does not test the limited categories of tort that survive Times restrictions: fighting words and personally threatening harassment. But if that is all one should read into Snyder, the case is of little consequence. On the other hand, if it signals a corrective in the understanding of Times, which went off-course, as I see it, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that is another matter.

 Gertz, which involved allegations of a communist plot to promote claims of police brutality—allegations clearly within the zone of political discourse on a matter of public concern—shifted the focal point of inquiry from the content of defendant’s speech to the status of the victimized plaintiff (in particular, whether plaintiff was a “private figure” or not); providing lesser protection of a defendant’s speech in the latter category of cases. This was, in fact, a sharp divergence from the spirit of Times; in particular, promoting a marketplace of discourse on public issues as central to the meaning of a democratic society.

 Moreover, Gertz rested on insubstantial foundations: the conclusory rationale that “public officials” and “public figures” assumed the risk of defamatory statements by participating in public affairs; and the dubious proposition (treated almost apologetically in a Gertz footnote) that public figures could neutralize defamatory statements by their access to media forums. Whatever the questionable earlier salience of this distinction between public and private figure access to forums of retaliatory speech, in the online era of blogs and Facebook, it is now highly anachronistic.

 But does Snyder in fact signal a revival of the foundational premise of Times protection of speech on matters of public concern? The majority opinion’s invocation of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), emphasizing the purely private nature in that case of defendant’s incorrect attribution to plaintiff of a bankruptcy petition, as a point of contrast from the political protest involved in Snyder (and the concomitant failure to even mention Gertz or private figure considerations in the Snyder opinion), possibly points in that direction.

 And suppose that the Court were to resurrect the promotion of the public marketplace of ideas as the core meaning of Times: Would that signal the demise of unencumbered protection of personality-based tort claims? Not at all. Take as a single example (of many that might be offered), Johnson v. Johnson, 654 A.2d 1212 (R.I.1995), in which an ex-husband loudly proclaimed in a restaurant setting and in the presence of his ex-wife, that she was a whore. Quite correctly, in my view, the Rhode Island court dispatched the First Amendment claim as a defense to the ex-wife’s tort claim. There remains not the slightest reason for affording constitutional protection to the defendant’s indifference to the feelings of the victim in such a case, when it rises to the level of outrageous breach of norms of civility. If Snyder turns out to be a first step towards a revival of a public/private subject matter focal point, then it will stand as an easy case with substantial consequences.

--Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School