Sticks and stones

may break your bones, but names can never hurt you; the Supreme Court decision in Snyder v. Phelps reminds me of the schoolyard taunt. The opinion seems to take great care to point out that all that was analyzed was the picketing activity of Westboro Baptist Church at the funeral of Matthew Snyder; the broader context of the conflict between Snyder and Phelps, which included television and internet publications, was explicitly not discussed by the majority or the concurrence. This case involves the interaction between two different parts of the law.

The first is an area of torts law; the lower court found that the Church had intentionally inflicted emotional distress (IIED) on Albert Snyder, the father of the Marine whose funeral the Church picketed, and one of the persons targeted directly by the Church's related writings. IIED requires a jury to decide that intentional, extreme, and outrageous conduct by the defendant caused severe emotional harm to the victim. In this case, the jury in the lower court did find the behavior of the Church outrageous, and awarded Snyder damages. The right of Snyder to sue for these damages is established by the State.

The second is First Amendment jurisprudence - in this case, the right to speak freely. The Court has allowed the State to constrain that right in certain cases, on a continuum from most protected to least protected. When the government attempts to interfere with the most protected speech, the Court applies the highest level of scrutiny, and the government usually loses. In this case, the Court looked exclusively at the behavior of the Church at the funeral and decided that the picketers were in a public place, making statements of broad public concern, not ones exclusively targeted at the Snyder family. Because this falls into the category of "most protected speech" the government must show that any restriction on it is very narrowly tailored to serve a compelling interest.

There are a number of things to look at in a decision like this. First, the dissent argued that the speech involved in the conflict between the Church and Snyder could reasonably be characterized as targeted when analyzed as a whole (including the television and internet postings). The majority decided that the predominant theme of the messages on the placards at the funeral were speaking to issues of broad public concern - America's tolerance of homosexuals. It's clear that what you include in the analysis will affect the outcome in a decision like this. Targeted speech of a certain kind was considered less protected in a case called Chaplinsky v. New Hampshire; that lower level of protection may have made a difference in this case.

Next, the compelling interest in this case would be the State's desire to protect its citizens from emotional attack. The Court has spoken in this area earlier in a 1988 case called Hustler Magazine v. Falwell. There the Court looked at speech that was targeted at a public figure. Despite the targeted nature of the piece, the Court decided that the State's interest in protecting the emotional well-being of a public figure could not overcome the speaker's right to create the parody in question. Had the Court in Snyder v. Phelps decided that the speech was targeted at Snyder and that Snyder was not a public figure, they might have given some guidance about the balance between the State and the speaker in this different configuration. Instead when they decided that the Church's message was of broad public concern, they put the speech into a category which the State is rarely allowed to regulate, because the Court believes the government may not interfere with the free discussion of ideas important to a politically informed citizenry.

Finally the Court addressed the issue of whether the definition of IIED was narrowly tailored enough to survive the strict scrutiny it imposed. In a statement which echoed a similar analysis in last year's United States v. Stevens, the Court reiterated that it was inappropriate to allow the over 50 jurisdictions in the United States to apply what are essentially local criteria in restricting speech. In the Federal statute at issue in the Stevens case, punishment could be imposed when the material was "illegal in the State in which the depiction is created, sold, or possessed", giving up to three different jurisdictions a chance to criminalize the video; in this case, each local jury could apply its own definition of "outrageous conduct" as described above. The majority decided that such a definition did not give enough guidance about what speech should be punished, and thus could reach even the speech in this case, which they decided was highly protected.

Although the opinion said multiple times that the decision was very limited to the facts in this case, we may be seeing a clue that IIED cases will be analyzed very strictly in future speech cases. On the other hand it may be that this analysis only implicates speech of public concern in a public forum, and that the outrageousness requirement may survive a lower level of scrutiny in different circumstances. If such a case comes up, we may see if the Court decides that some words, like sticks and stones, can hurt you, and be punished.