The Yale Law Journal

VOLUME
120
2010-2011
Forum

Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations

29 Dec 2010
Deana Pollard Sacks

The Supreme Court’s forthcoming decision in Snyder v. Phelps will address the clash between two fundamental and longstanding American values: freedom of speech and “the right to be let alone.” Freedom of speech is a cherished and distinguishing characteristic of American democracy, while the right to be left alone has been acclaimed as “the most comprehensive of rights and the right most valued by civilized men.” The facts of Snyder v. Phelps present a direct conflict between these two rights, the reconciliation of which is a complicated and divisive jurisprudential challenge.

The Phelpses’ family-operated Westboro Baptist Church exploited former marine Matthew A. Snyder’s untimely death in Iraq to expound its “religious” belief that “God hates fags” and kills American soldiers to punish the United States for tolerating homosexuality. Its messages, which mixed political and religious viewpoints with personal attacks on the Snyders, produced a jury verdict in the amount of $10.9 million in favor of Matthew’s father for invasion of privacy and intentional infliction of emotional distress. The Fourth Circuit reversed on First Amendment grounds, finding the political speech and personal attacks categorically exempt from tort liability. The Supreme Court granted certiorari.

The Supreme Court’s decision in Snyder v. Phelps will have a profound influence on our social order. In essence, the Court will determine what kind of society we will live in, where the boundaries are for intentionally harmful and malicious speech, and how Americans will attain redress for personal injuries inflicted by speech. The Court’s decision will send a message to both perpetrators and victims of extreme and injurious hate speech, bullying, harassment, and other speech-based tortious behavior, which will either encourage or discourage intentionally harmful speech. In short, the Court’s decision in Snyder v. Phelps is of monumental social importance.

This Essay analyzes the Supreme Court’s speech-tort precedents and argues that the Court should reject the Fourth Circuit’s categorical approach and instead adopt a balancing approach consistent with its existing speech-tort jurisprudence to reconcile the values protected by free speech with the values protected by tort liability, which are fundamentally convergent. Both free speech and tort liability seek to further individual autonomy and self-determination by encouraging individuals to exercise and protect their liberty interests through accessible democratic processes that avert oppression, fear, and hate. A proper speech-tort balance should optimize the values inherent in both, while an imbalance could lead to distrust of the government, frustration of First Amendment policies, and extralegal and socially dangerous self-help.

Historically, harmful speech has been subject to tort liability, a creature of state law. In 1925, the First Amendment was incorporated into the Due Process Clause of the Fourteenth Amendment, thereby limiting states’ power to punish speech. Roughly forty years later, the Court first recognized that state tort law constitutes state action and, therefore, the First Amendment can operate as a partial or complete bar to tort liability arising from speech. Beginning with New York Times Co. v. Sullivan, the Supreme Court began “constitutionalizing” state tort claims to actualize First Amendment protection of speech subject to tort liability. The Court specifically rejected a categorical approach and instead balanced the various interests at stake in recognition that, as venerable and fundamental as free speech is, it is not the only societal interest at risk when one person’s speech infringes on another’s personal interests protected by tort law. In Sullivan, the Court reconciled defamation liability with the First Amendment by tailoring the elements of the plaintiff’s prima facie case in an attempt to find the optimal balance of rights to protect both personal interests and freedom of speech.

In a series of subsequent cases over the past half-century, the Court identified a number of balancing factors that determine the level of heightened evidentiary burdens necessary to reconcile tort claims with First Amendment policies. Snyder v. Phelps may represent the most challenging speech-tort case that the Supreme Court has reviewed, considering that it lacks certain objective characteristics present in prior speech tort cases, such as factual falsity or proprietary harm. The Court should nonetheless employ the same balancing approach that it has utilized in prior speech-tort cases by identifying all of the interests at stake on both sides of the controversy, then raising Mr. Snyder’s evidentiary burdens to constitutionalize his claims for invasion of privacy and intentional infliction of emotional distress.

This Essay proceeds in four parts. Part I reviews the facts of Snyder v. Phelps. Part II identifies the interests at stake on both sides of the case and argues that similar core values—including freedom of speech—are at risk on both sides of Snyder v. Phelps and that important social interests are also implicated. Part III analyzes the Court’s balancing approach to reconciling tort liability with the First Amendment, identifies the Court’s previously recognized balancing factors, and explains the Court’s method of evidentiary tailoring to constitutionalize tort claims. Part IV applies the balancing approach to the interests at stake in Snyder v. Phelps and suggests ways in which the Court could tailor Mr. Snyder’s evidentiary burdens of proof or limit his recoverable damages to render his claims constitutional.

I. The Facts of Snyder v. Phelps

The Westboro Baptist Church is a family-operated church located in Topeka, Kansas. Fred W. Phelps founded the church in 1955 and has been the church’s only pastor to date. The church membership consists of approximately sixty to seventy members, about fifty of whom are related by blood to Phelps. The Phelpses and other church members practice a “fire and brimstone” fundamentalist religious faith. They believe that God hates homosexuals and punishes America for its tolerance of homosexuality by killing American soldiers. The church established a website (www.godhatesfags.com) to publicize its views. Church members began picketing funerals of fallen soldiers to draw attention to their religious beliefs several years ago and have increasingly picketed funerals to attract media attention.

Marine Lance Corporal Matthew A. Snyder was killed in Iraq in the line of duty on March 3, 2006, and his parents chose to have a funeral for him in their home town of Westminster, Maryland at St. John Catholic Church. His father, Albert Snyder, spoke to the media immediately after his son’s death and placed obituary notices in the local newspapers that indicated the time and place of his son’s funeral.

Westboro Baptist Church members discovered the obituary notices and then showed up to protest the funeral of Matthew Snyder. The church members carried large signs near the funeral containing slogans akin to the following: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Pope in hell,” “Fag Troops,” and “Semper Fi fags.” Some signs appeared to target Matthew Snyder personally, such as “You’re going to hell,” “God hates you,” and “Thank God for dead soldiers.”

In addition, the Phelpses published an “epic” on their website that clearly targeted Matthew Snyder personally, entitled “The Burden of Marine Lance Cpl. Matthew Snyder.” In the epic, the Phelpses accuse Albert Snyder and his ex-wife Julie Snyder of teaching Matthew to defy his creator and to divorce and commit adultery, of raising him for the devil, and of teaching him that God is a liar. The epic went on to state that God “rose up” Matthew in order to kill him and that Matthew “fulfilled his calling” to create an opportunity for others to preach God’s word.

Albert Snyder did not actually see the content of the signs at the funeral but did see them later on television. Mr. Snyder viewed the epic after running a Google search on his son. Mr. Snyder sued the Phelpses on a variety of tort claims, and his claims for invasion of privacy, intentional infliction of emotional distress, and civil conspiracy proceeded to trial. At trial, Mr. Snyder presented evidence of extreme and severe emotional distress leading to physical illness, worsening of his diabetes, severe depression, and an inability to have positive memories about his son, as the Phelpses’ messages—and particularly the sign “Thank God for dead soldiers”—was irreversibly attached to his memories of Matthew. The jury returned a verdict for $2.9 million in compensatory damages and $8 million in punitive damages on Mr. Snyder’s claims for invasion of privacy and intentional infliction of emotional distress. The trial court reduced the punitive damages award to $2.1 million for a final judgment of $5 million.

The Fourth Circuit reversed the district court judgment, holding that all of the Phelpses’ speech was immune from tort liability, and assessed costs against Mr. Snyder in the amount of $16,510. The Fourth Circuit articulated categories of speech that are absolutely protected by the First Amendment: (1) “statements on matters of public concern that fail to contain a ‘provably false factual connotation’”; and (2) “‘rhetorical hyperbole,’” defined as statements employing “‘loose, figurative, or hyperbolic language.’” The court found that all of the Phelpses’ speech fell within these categories. The Supreme Court granted certiorari and heard oral arguments on October 6, 2010, with a decision expected in the spring of 2011.

II. The Conflicting Interests in Snyder v. Phelps and Social Implications

Before applying constitutional norms to the facts of Snyder v. Phelps, it is important to identify the interests at stake on both sides of the case. In addition, the state’s interests and the contemporary social context should be considered, consistent with Supreme Court precedent.

Freedom of speech is among the most cherished American freedoms. As the Supreme Court has recognized, “it is a prized American privilege to speak one’s mind.” Strong protections for freedom of speech reflect the Court’s longstanding belief that:

  [I]t is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; . . . and that the fitting remedy for evil counsels is good ones. . . . [Those who won our independence] amended the Constitution so that free speech and assembly should be guaranteed.  

Freedom of speech furthers the American ideals of an open and honest democratic process, discovery of the truth, self-actualization, and avoidance of injustice and furtherance of tolerance in a pluralistic society.

These First Amendment policies cohere considerably with the fundamental policies protected by tort liability. Dignitary torts in particular, such as invasion of privacy, “stand[] on high ground, cognate to the values and concerns protected by constitutional guarantees.” Like freedom of speech, tort law “promotes the law’s civilizing function” and protects individual freedom, autonomy, and self-actualization by vindicating “private personality and emotional security, . . . the right [‘]to be let alone.’”

The Supreme Court has repeatedly recognized that civil liability for speech is not trumped by the First Amendment but, instead, requires a reconciliation of the important social policies furthered both by tort law and the First Amendment. This approach is consistent with the Court’s longstanding policy that freedom to exercise one person’s liberty interests cannot justify trampling over another’s liberty interests or the interests of the state, and that one person’s free exercise of constitutional rights ends where such exercise unduly burdens the rights of others:

  Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state . . . .” The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.  

Contrary to the Fourth Circuit’s opinion that the Phelpses’ First Amendment rights override Mr. Snyder’s competing interests in privacy and emotional tranquility protected by tort law, a proper balance of rights requires a careful and complete analysis of the individual liberty, dignity, and self-determination interests at stake on both sides of the case. The Phelpses’ desire to exploit the Snyder family’s tragedy and to attack the character of Matthew and his parents for publicity purposes directly clashes with Mr. Snyder’s desire to determine for himself the nature and tone of his family’s grieving process, maintain privacy to protect his family from emotional turmoil, exercise his free speech right to publicize information concerning his son’s death in Iraq and the time and place of funeral services, and avoid stress-induced physical health problems. The Court’s opinion will necessarily limit one or both parties’ autonomy and liberty. This is the essence of conflicting rights.

There are also state interests at stake in this case beyond the usual state interest in protecting an individual’s health, property, and emotional tranquility by means of civil liability. Snyder v. Phelps arose in a social context in which hate-based torts and crimes have become widespread and threaten American health, society, and culture. The Phelpses’ speech-based harassment can fairly be termed “bullying,” which has been defined as “‘the repeated, health-endangering mistreatment of a target by a cruel perpetrator, through hostile verbal and nonverbal communication and interfering actions.’”

Bullying has reached epidemic proportions in America: it is the number one cause of workplace violence and is a “‘crippling and devastating problem’ with the potential to damage targets’ self-esteem, physical health, cognitive functioning, and emotional health.” “[B]ullying is a deep and painful assault to the dignity of the person targeted” and is characterized by intimidation, exploitation, humiliation, and gossiping, among other things. In the workplace, bullying is four times more prevalent than discriminatory harassment. The problem has become so common in schools that the Assistant Secretary for Civil Rights at the U.S. Department of Education announced on October 26, 2010, that schools may be stripped of their federal funding monies if they do not comply with federal antibullying mandates, and the Department of Education has set up a website dedicated exclusively to bullying. The Department of Education’s antibullying policies have emerged from the devastating tragedies that are known to result from bullying, including suicide among children as young as eleven years old who resorted to the ultimate form of self-help when the government failed to protect them from bullying and sexual-orientation harassment perpetrated by peers. Mr. Snyder’s emotional and physical reaction to the Phelpses’ picketing and speech-based hateful attacks was predictable, typical, and by no means extraordinary.

Federal and local governments have responded to the growing problem of funeral picketing by enacting time, place, and manner restrictions on picketers to protect persons such as Mr. Snyder from physically proximate harassment at funerals. It was undisputed at trial that the Phelpses complied with local ordinances and police directives when picketing Matthew Snyder’s funeral. However, as exemplified by the facts of Snyder v. Phelps, the fact that the time, place, and manner of the Phelpses’ speech did not violate criminal laws does not affect the legal analysis of whether tort liability violates the First Amendment. Restrictions discouraging direct contact with grieving family members (and the potential for physical breaches of the peace) do not affect the propriety of a tort remedy based on the intent, content, and harm resulting from injurious speech any more than the fighting words doctrine prevents tort liability for defamatory speech that is not published in a face-to-face confrontation. In Mr. Snyder’s case, his harm would have been the same if the Phelpses had televised their funeral protest from their backyard in Topeka, Kansas or through their website. A tort remedy may be desirable and jurisprudentially supportable regardless of any time, place, and manner restrictions that regulated the physical proximity of the Phelpses’ picketing.

When tort law fails to provide a remedy for a victim of civil misconduct, this tends to provoke the victim to “seek his revenge in another way than by law.” Tort liability was justified historically as an alternative to dueling and other illegal forms of self-help and has an objective of producing a safer, less hostile society by encouraging appeal to judicial processes. This tort policy converges with a primary First Amendment objective: to further tolerance and societal self-control. Accordingly, it should come as no surprise that members of the Westboro Baptist Church were assaulted by a group of Marines on at least one occasion. As a practical reality, when “free speech” constitutes bullying, harassment, or other manifestations of hate, it conflicts directly with values protected by both tort liability and the First Amendment.

Perhaps worse, the normative message produced by the Fourth Circuit’s opinion is that the First Amendment confers a constitutional right to target and harass private individuals provided that the speech is not provably false and arguably relates to speech of legitimate public concern. As pointed out by Justice Alito at oral arguments, such a rule of law potentially places at risk for harassment any private individual who so much as visits the gravesite of a family member who was killed in the line of duty. The Fourth Circuit’s opinion will exacerbate the social problem of bullying and other malicious and harmful speech, as it forces the victims of intentionally harmful speech to absorb the costs of such, and fails to discourage the perpetrators, who enjoy the benefit of cost-externalization. The ultimate social effect may be to drive Americans into seclusion to avoid being targeted for hateful harassment, thereby limiting their First Amendment and other constitutional freedoms. Those who are gay and lesbian, in particular, could be driven into insularity to avoid the hurtful harassment that the Fourth Circuit’s opinion will encourage among persons like the Phelpses, who operate with the benefit of heterosexual majoritarian privilege. This would create perverse constitutional norms, would defy the very notion of individual freedom that lies at the heart of our Constitution, and would render the historical American maxim “e pluribus unum” a mockery.

The Court should recognize that Snyder v. Phelps is not a simple case about whether tort liability infringes on the Phelpses’ free speech rights. The clash of interests involved means that any way the Court decides the case, someone’s First Amendment ox will be gored. The issue is a complicated one and necessitates an analysis of all interests at stake relative to one another to appreciate fully the normative message and social effects that will flow from the Court’s decision. The Court should balance the state’s interests, society’s interests, and the parties’ interests to reconcile free speech with tort liability, consistent with its established speech-tort precedent, and allow Mr. Snyder a limited tort remedy consistent with existing jurisprudence and basic justice.

III. The Supreme Court’s Methodology for Reconciling Tort Liability with the First Amendment

The Supreme Court has rendered numerous opinions analyzing the conflict between tort liability arising from injurious speech and the First Amendment’s protection of speech. The Court’s opinions indicate that all competing interests should be considered and, taken together, point to three primary balancing factors to determine the level of constitutional protection for tortious speech: (1) the plaintiff’s level of vulnerability and need for state law protection (the public figure/private individual distinction); (2) the nature of the speech as public or private; and (3) the nature of the plaintiff’s injury. Depending on the outcome of the balance of interests, the Court has tailored the evidentiary burdens of plaintiffs’ prima facie tort claims strictly or moderately, or has deferred to state tort law. This Part briefly explains the Court’s balancing approach and method of evidentiary tailoring.

A. The Seminal Speech-Tort Case: New York Times Co. v. Sullivan

The Supreme Court first considered the extent to which the First Amendment limits a state’s police power to award tort damages in a defamation case brought by a public official against critics of his official conduct in New York Times Co. v. Sullivan. The Court specifically rejected a categorical approach to defamation liability, focusing instead on the nature of the publication as an initial consideration for determining the constitutionality of its punishment.

The Court found that that a full-page advertisement published by the New York Times seeking funds to defend Martin Luther King, Jr.’s allegedly wrongful and harassing criminal prosecution was political speech, and therefore the First Amendment required substantial evidentiary modifications to the common law prima facie case of defamation to avoid chilling robust debate concerning self-government. First, the Court raised the level of fault necessary to establish the claim from negligence or strict liability to “actual malice,” meaning that the defendant actually knew that the speech was false or published it with reckless disregard as to its truth or falsity. Second, the actual malice standard shifted the burden of proof that the speech is false onto the plaintiff, instead of the common law rule that truth is a defense. Third, the Court raised the level of proof required to establish fault from the general tort burden of a preponderance of evidence to a heightened burden of clear and convincing evidence. The Court’s primary focus was the political nature of the speech, but Sullivan’s status as the Montgomery Public Safety Commissioner with control over the police officers who allegedly harassed Dr. King rendered him a public official and therefore subject to the “actual malice” standard, a point clarified a decade later in Gertz v. Welch, Inc.

B. The Plaintiff’s Vulnerability Factor: The Public Figure/Private Individual Distinction

In Gertz, the Court clarified that the level of constitutional tailoring necessary to constitutionalize a claim for defamation turns primarily on the plaintiff’s status as a public figure or a private individual, because private individuals are “more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” Attorney Robert Gertz was defamed in relation to a wrongful death action he brought on behalf of a family whose minor son was shot and killed by a police officer, who was subsequently charged with murder in the high-profile prosecution that followed the shooting. Despite Mr. Gertz’s choice to take on the high-profile civil case, his substantial involvement in the community, and the fact that he had written books and was active in civic affairs, the Court found that he had not sufficiently “thrust himself” into the public spotlight and had not achieved the general fame necessary to be deemed a public figure. As a result, Mr. Gertz was entitled to greater state tort law protection.

The Court identified two reasons why public figures presumably have less need for, and are less deserving of, state protection from defamatory speech, warranting the higher Sullivan actual malice standard. First, if the plaintiff is a public figure, he presumably has access to the media for purposes of counter-speech, and can therefore engage in “self-help,” to protect his reputation. Second, with “exceedingly rare” exceptions, a public figure took affirmative action to inject himself into the public spotlight by pursuing an official position or general fame, and thereby assumed the risk of public criticism and even “sharp attacks” on his character and integrity. Private individuals assume no such risks and lack the power to call a press conference, making them more sympathetic plaintiffs in need of greater tort law protection.

Accordingly, the balance between free speech and tort liability shifts toward more deference to state tort law where private individuals are injured, in recognition of the state’s greater interest in protecting them. The Court therefore reduced Mr. Gertz’s burden of proof of fault from actual malice to negligence and allowed recovery of actual damages upon proof of fault by a mere preponderance of evidence. The Court also added an element of “actual damages” to the private-individual/public-concern prima facie case of defamation in an apparent attempt to maintain reasonable protection of public-concern speech, considering the reduced burden of proof on the fault element.

In Hustler Magazine, Inc. v. Falwell, the Court extended the actual malice standard to public figures who claim intentional infliction of emotional distress arising from speech, based on the reasoning of Gertz. The Reverend Jerry Falwell had acquired general fame as a “nationally known minister who has been active as a commentator on politics and public affairs.” Accordingly, his claims for libel and intentional infliction of emotional distress arising from a comical parody asserting that his first sexual experience was a drunken rendezvous with his mother in an outhouse were both subjected to the actual malice standard. The Court emphasized the Reverend Falwell’s public status and the value of derogatory parody and satire in political debate: “[W]hile . . . a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.” The Court required factual falsity, an element not usually a part of an intentional infliction of emotional distress claim, to prevent the Reverend Falwell from circumventing the First Amendment limits to tort liability for public figure defamation by recasting his grievance as a claim for emotional distress. The Court required falsity to avoid the “inherent subjectiveness” of what constitutes “outrageous” speech but clearly limited its holding to political commentary concerning public figures since political cartoons are common “‘weapon[s] of attack’” in need of “breathing space” to avoid chilling political debate.

Defamation protects reputation from false and injurious statements of fact, while emotional distress claims and privacy torts protect emotional tranquility and the right to be left alone. However, based upon the Court’s explanation as to why it declined to extend the actual malice burden of proof to Mr. Gertz’s defamation claim but extended it to the Reverend Falwell’s emotional distress claim, it seems clear that the same public figure/private individual distinction should apply to any tort claims that arise from speech. In Gertz and Hustler the Court identified the core reason for affording less tort law protection to public figures. The Court explained that such individuals choose to exist in the public limelight and consequently face the risk of criticism, gossip, negligent false statements of fact, and even some level of harassment. For people who do not choose a public life, the state has a recognized increased interest in protecting their privacy and emotional autonomy. Therefore, despite elemental differences in the various torts that can arise from speech, the public figure versus private individual distinction should be transported from defamation to other speech torts.

C. The Nature of the Speech Factor: The Public-Concern/Private-Matter Distinction

Both Sullivan and Gertz concerned speech of “public concern.” In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,the Court distinguished private speech from public-concern speech and affirmed the Vermont Supreme Court’s decision that Gertz does not apply “when the defamatory statements do not involve matters of public concern.” In a plurality opinion, Justice Powell reasoned that such matters were “less important” for First Amendment purposes and of “reduced constitutional value,” necessitating less evidentiary tailoring of the prima facie case of defamation to meet constitutional scrutiny. The somewhat relaxed evidentiary tailoring of Gertz was relaxed further so that it converged with most states’ existing defamation laws: awards of presumed and even punitive damages for defamation were held to be constitutional upon proof of ordinary negligence where private speech harms a private individual. The levels of evidentiary tailoring based on the status of the plaintiff and the extent to which the speech is of public concern presumably apply to torts other than defamation, as the Court implied in Hustler.

D. The Nature of the Injury

The Court has essentially deferred to state tort regulation of speech where the plaintiff claims proprietary harm or actual damages as opposed to dignitary or emotional harm, regardless of whether the plaintiff is a public figure or the speech is of great public concern, based on the state’s heightened interest in protecting property rights. In Zacchini v. Scripps-Howard Broadcasting Co., the plaintiff claimed invasion of privacy in the form of misappropriation of his professional creative property—a human cannonball stunt at a fair—after a television station played the entire event on the evening news without his consent. The Court held that the Sullivan actual malice standard did not apply when the state seeks to protect the plaintiff’s property interests, as opposed to merely “feelings or reputation.” The Zacchini majority found that the state’s interest in protecting the plaintiff’s creative act was “analogous to the goals of patent and copyright law” and that the state has a strong interest in preventing “unjust enrichment by the theft of good will.” Indeed, protecting the fruits of one’s ideas through tort liability furthers the First Amendment policy of encouraging creative ingenuity. Similarly, in Harper & Row, Publishers, Inc. v. Nation Enterprises, the Court held that the First Amendment did not protect a political magazine from liability for publishing portions of a stolen copy of Gerald Ford’s “memoirs” concerning the Watergate crisis because First Amendment values are enhanced by protecting the right to create and own ideas, and the publication caused Ford to incur substantial actual damages.

IV. Applying the Supreme Court’s Methodology to Snyder v. Phelps

As noted in Part II, there are a number of important interests at stake on both sides of Snyder v. Phelps, as well as a variety of state interests. This Part analyzes the competing interests at stake in Snyder v. Phelps by reference to the Supreme Court’s balancing approach and offers suggestions for constitutionalizing Mr. Snyder’s claims for invasion of privacy and intentional infliction of emotional distress.

A. The Balancing Factors Applied to Snyder v. Phelps

First, Mr. Snyder should be deemed a private individual, not a public figure. Unlike Mr. Sullivan or Mr. Falwell, Mr. Snyder is not a high-ranking public official or a person of general fame. Rather, he was unknown to the public before the media frenzy caused by the Phelpses’ behavior. Mr. Snyder spoke to the media and placed a funeral notice in a local newspaper before the public controversy arose, but did not inject himself into the spotlight before the events that gave rise to the high-profile controversy and his attendant tort claims, so he could not have assumed the risk of the Phelpses’ personal attacks before he was subjected to them. Even Mr. Gertz was deemed a private individual, despite having written books, being active in the community, and choosing to be the attorney of record in the high-profile controversy that preexisted his defamation claim.

The Phelpses have attempted to characterize Mr. Snyder as a “limited-purpose public figure” for the purpose of applying the actual malice standard of Sullivan, pointing to the fact that Mr. Snyder spoke with the media and was “enjoying all the benefits of a public figure.” However, access to the media after the events giving rise to tort liability has never been held to establish public figure status and contravenes the Court’s explanations for distinguishing private individuals from public figures, especially since Mr. Snyder appears to have been dragged into the public spotlight against his will. Because the public was largely unaware of Mr. Snyder’s existence before the Phelpses’ choice to use Matthew Snyder as an example of God’s retaliation for America’s tolerance of sexual freedom, Mr. Snyder should be considered a private individual.

Indeed, the First Amendment would be undermined if Mr. Snyder were to be characterized as a public figure based on the mere fact that he discussed his son’s death with the media and placed funeral notices in newspapers before the conduct that gave rise to his tort claims. Such a characterization would punish Mr. Snyder’s exercise of his free speech right to speak through the media. It would operate to chill Mr. Snyder’s free speech rights and the rights of other grieving parents who have lost their children to war, as similarly situated parents would avoid speaking to the media to avoid becoming targets of hate. The result would be an attendant loss to the public of newsworthy information bearing on foreign policy that surely warrants as much First Amendment protection as the Phelpses’ messages of hate. Of greater concern is the predictable chilling effect on private individuals’ speech generally that may result as society realizes the danger of exercising free speech rights: few people would agree to speak to the media about personal tragedies if doing so could be punished by a loss of the civil rights and remedies protected by tort law. In retrospect, Mr. Snyder probably regrets speaking to the media, considering the years of pain and health problems that he has endured because of his choice to speak out and notify the public about his son’s accomplishments and untimely death. Mr. Snyder should be deemed a private individual under this factor because it is in line with Supreme Court precedent and it furthers the exercise of free speech among private citizens.

Regarding the second factor, the nature of the speech involved in Snyder v. Phelps is mixed. Speech expressing political or religious opinion of genuine public concern was mixed with speech that targeted a private family with highly inflammatory personal attacks for the apparent purpose of garnering media attention that the Phelpses could not garner based on the content of their speech alone. Signs such as “God Hates the USA,” “America is doomed,” “Fag troops,” “Thank God for 9/11,” and “Semper fi fags” should be absolutely protected by the First Amendment as political speech, provided the manner of displaying the messages is otherwise legitimate.

However, the signs and epic that targeted the Snyder family personally, characterizing Matthew as having been “raised for the devil” by his parents and “going to hell,” for example, do not concern the public. The Snyders’ child-rearing methods are not of public concern any more than a private company’s solvency was in Dun & Bradstreet. There is a difference between using the First Amendment as a shield to protect speech of legitimate public concern and using the First Amendment as a sword to publicize private individuals’ personal tragedies, attack their morality, and disturb their emotional tranquility in a manner that contravenes minimal expectations of civility protected by emotional distress and privacy torts. The Court should clarify that tort liability in Snyder v. Phelps cannot rest on the portion of the Phelpses’ speech that is of legitimate public concern but instead should rest on their personal attacks on Mr. Snyder’s character and exploitation of his personal tragedy that was unnecessary to further any speech of legitimate public concern.

The third balancing factor—the nature of the state’s interest in providing a tort remedy—presents another mixed factor. Mr. Snyder claimed general damages for emotional distress and privacy infringement, which are probably governed by the lesser state interest in protecting “feelings and reputation.” Mr. Snyder also claimed physical injury in the form of exacerbated diabetes, which seems to warrant greater state protection and is amenable to objective verification, like property losses. Although the Court has not spoken on the relative state interest in protecting physical health over feelings or reputation, established tort doctrine values physical injury over competing property interests, at least where the physical injury is serious. In addition, tort law generally protects physical injury more than pure emotional distress in much the same way as the Court protects property rights more than pure emotional distress, and the state presumably has a greater interest in protecting physical health over emotional upset.

The hierarchy of state interests should place physical injury above pure emotional distress based on established tort doctrine, at least where the physical injury is factually verifiable. Accordingly, Mr. Snyder’s injuries probably present a stronger case for recovery than a pure emotional distress claim, and the state’s interest should be considered correspondingly higher.

The Court should also consider the important social effects and normative message that its decisions will have on a society that suffers from an epidemic of hate crimes, harassment, bullying, and uninhibited malice. The social context in which harmful speech occurs is a traditional factor in First Amendment jurisprudence, and sometimes First Amendment values are ultimately furthered by punishing speech that inhibits others’ free speech. While the First Amendment should protect political and other public-concern speech fiercely, it should not be construed as a license to harm private individuals intentionally relative to private matters, because to do so would oppress the rights of such private persons—including their First Amendment rights, as noted above. A balanced approach consistent with the Supreme Court’s speech-tort precedent would allow limited tort liability for intentional, harmful speech that relates to private individuals’ concerns while broadly protecting speech of legitimate public concern.

B. Reconciling Mr. Snyder’s Claims with Free Speech: Suggestions for Evidentiary Tailoring

Assuming that the Court determines that Mr. Snyder is not a public figure, the Court should adopt some form of moderate evidentiary tailoring of Mr. Snyder’s tort claims, even if the Phelpses’ speech is deemed entirely of public concern and Mr. Snyder’s injuries are considered unimportant to the state, which seems unlikely. This Section suggests ways in which the Court could tailor Mr. Snyder’s claims for invasion of privacy and intentional infliction of emotional distress to reconcile these claims with the First Amendment.

1. Invasion of Privacy

The Snyder v. Phelps jury was instructed that the tort of invasion of privacy based on intrusion upon seclusion is established if the plaintiff proves each of the following elements by a preponderance of the evidence: “(1) an intentional (2) intrusion or prying upon (3) something which is and is entitled to be private (4) in a manner which is highly offensive to a reasonable person.” There are ways in which Mr. Snyder’s burden of proof to establish invasion of privacy could be raised to meet First Amendment demands.

First, a harm element similar to the general negligence harm element could be added, as in Gertz. That is, requiring some form of verifiable personal injury or property damage would limit liability to cases in which the state’s interest is greater than protecting against harm to feelings or reputation. Adding an element of tangible and verifiable harm would limit substantially the number of claims that could be sustained, thereby protecting all speech that does not lead to actual harm. Second, a subjective intent element could be added to require proof that defendant did not just intend the intrusion, but actually intended to cause personal injury or property damage or acted recklessly relative to such harms. This would mirror the intent aspect of the “actual malice” standard, an option loosely suggested by Justice Breyer at oral arguments, and would place additional evidentiary burdens on the speech-tort plaintiff and limit tort liability to cases in which the defendant’s socially undesirable mens rea warrants punishment. Third, disallowing punitive damages is an option for reconciling free speech with tort liability, as it would allow compensation of injury to tort victims without punishing their speech any more than is necessary to strike a fair balance between the need for compensation and the social value in protecting speech. Finally, requiring proof of all elements of the claim by clear and convincing evidence offers enhanced protection of speech, because this would limit the number of plaintiffs who will be able to establish their claims.

2. Intentional Infliction of Emotional Distress

The Snyder v. Phelps jury was instructed that the tort of intentional infliction of emotional distress is established if the plaintiff proves each of the following elements by a preponderance: “(1) that the Defendants’ conduct was intentional or reckless; (2) that the conduct was extreme and outrageous; (3) that the conduct caused emotional distress to the Plaintiff; and (4) that the emotional distress was severe.” To limit liability for speech that causes emotional distress, the proof of emotional distress could be raised to require proof of physical injury resulting from the emotional distress, as in most negligent infliction of emotional distress cases. Requiring proof of tangible injury inherently limits claims while assuring that the most deserving victims of speech torts are afforded a civil remedy. Raising Mr. Snyder’s burden of proof to clear and convincing evidence and disallowing punitive damages also offer enhanced protection of speech while allowing reasonable protection against intentional infringement of emotional tranquility arising from speech.

Conclusion

The Supreme Court has consistently rejected the type of categorical approach to protecting speech from tort liability that was adopted by the Fourth Circuit in Snyder v. Phelps. Rather, the Court has repeatedly explained that the clash of interests created by tort liability for speech necessitates a careful analysis of all competing interests involved, to assure protection of personal interests to the greatest extent possible while protecting freedom of speech sufficiently. Established speech-tort precedent holds that the greatest speech protection is imposed where the plaintiff is a public figure, the speech is of public concern, and the injury is purely emotional or dignitary in nature. To the contrary, where the plaintiff is a private individual, the speech is private in nature, or the injury involves more than mere “feelings or reputation,” the First Amendment presents less of an obstacle to tort liability.

The Court should adhere to its speech-tort methodology in Snyder v. Phelps and allow Mr. Snyder a tort remedy by finding that he is a private individual, that at least some of the speech involved was private in nature, and that he suffered more than intangible injury to emotions. In addition, the Court should consider America’s contemporary social context and the serious risks posed to private individuals as a result of an epidemic of hate-motivated bullying and harassment that disproportionately targets minorities such as those who are gay and lesbian and is known to lead to tragic and fatal consequences for some of America’s most vulnerable citizens. The Court should also recognize that when legal remedies are denied for grossly malicious and intentional misconduct, people will likely resort to extralegal remedies, and that subverting private individuals’ civil rights to the First Amendment rights of hate-perpetrators can lead to less freedom for everyone and a perversion of the most basic American constitutional norms.

Deana Pollard Sacks is Professor of Law at Texas Southern University. She may be reached at (713) 927-9935.

A complementary essay on Snyder v. Phelps analyzes the statements made and questions posed by members of the Court during oral arguments in conjunction with the Court’s preexisting speech-tort precedents and predicts that the Court will reverse the Fourth Circuit and provide Mr. Snyder with a “constitutionalized” tort remedy. See Deana Pollard Sacks, Snyder v. Phelps: A Prediction Based on Oral Arguments and the Supreme Court’s Established Speech-Tort Jurisprudence, 2010 Cardozo L. Rev. de novo 418.

Preferred citation: Deana Pollard Sacks, Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations, 120 Yale L.J. Online 193 (2010), http://yalelawjournal.org/forum/snyder-v-phelps-the-supreme-courts-speech-tort-jurisprudence-and-normative-considerations.