First Amendment: Freedom of Speech (Content Regulation)

Defamation is a form of expression that provides the basis for a claim on grounds it causes harm to reputation. Historically, it has been viewed as speech with slight social value and thus beyond the protective range of the First Amendment. Even libelous or slanderous speech, however, may add value to political discourse that advances informed self-governance. This understanding was embraced in New York Times Co. v. Sullivan (1964), when the Supreme Court established a higher standard of proof for public officials who brought defamation actions. The Court reached this outcome “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The actual malice standard, which requires public officials to prove that a defamatory statement was made with knowledge of the falsehood or reckless disregard of the truth, provides breathing space for freedom of speech that previously did not exist. The higher standard of proof for public officials was supported by a logic that had the potential to expand with respect to other persons or contexts. Soon after its decision in New York Times Co. v. Sullivan, the Court extended the actual malice standard to public figures. It characterized public figures, in Curtis Publishing Co. v. Butts (1968), as persons who are “intimately involved in the resolution of important public questions or [who], by reason of their fame, shape events in areas of concern to society at large.” The rationale for equating public figures with public officials was that each had special relevance to the information marketplace and processes of informed self-governance.

At issue was a defamation claim by an attorney (Elmer Gertz), who had brought a wrongful death action on behalf of a family whose son had been shot by a Chicago policeman. A periodical described Gertz as the “architect [of a] Communist frame-up” who also had an extensive police file. Key to the outcome of the case was whether Gertz was a public figure or whether the actual malice standard extended to public issues or private persons. Justice Lewis Powell, in a majority opinion, determined that the actual malice standard governed only public officials and public figures. Noting an inevitable tension between the interest of “vigorous and uninhibited” expression and the need to remedy reputational harm, the Court reaffirmed the importance of some “strategic protection” for defamatory speech. It could identify no basis, however, for correlating the actual malice standard to public interest or extending it to private persons. Its limits thus reached no further than public officials and those persons “who by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention are properly classified as public figures.”

Requiring persons to prove that a statement was made with knowledge that it was false, or with reckless disregard of the truth, represented what the Court described as a “powerful antidote” to self-censorship. It also, as the Court put it, imposed “a correspondingly high price from the victims of defamatory falsehood.” This increased burden was warranted, however, on grounds that public and nonpublic defamation plaintiffs are not similarly situated for First Amendment purposes. A key difference, for instance, is the relatively greater power of public persons to command the media’s attention and tell his or her side of the story. Because public persons have greater access to the media than nonpublic persons, the Court believed that they “have a more realistic opportunity to counteract false statements than private individuals normally enjoy.”

Significant too, in the Court’s view, was the sense that public officials and figures by seeking government office or high-profile positions assume the risk of public scrutiny. Whether as a political candidate or having achieved “especial prominence in the affairs of society,” public persons “invite attention and comment.” Although exceptions to these norms may exist, the Court reasoned that the “media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” The same determination could not be made, at least from the Court’s perspective, with respect to private individuals. Because they did not aspire to be in the public eye, by seeking public office or stature, they ceded no interest in their “good name.” Being more vulnerable to reputational harm, as the Court saw it, private persons were more deserving of protection.

Although Gertz had served on various government commissions and as an attorney was an officer of the Court, the Court found that he did not qualify as a public official for purposes of the action. Despite the official nature of Gertz’s positions, the defamatory statements did not pertain to his government service. The Court also was reluctant to subject attorneys as a class to the actual malice standard. Nor did it view him as a public figure. In this regard, the Court specifically determined that he had not attained public figure status involuntarily, on the basis of pervasive power or influence, or by thrusting himself into a public controversy. Rather, the Court saw him as a private person whose claim accordingly was not governed by the actual malice standard. The bottom line was a rule that limits the actual malice standard to public officials and public figures, but allows states the latitude to establish liability for defamation of private persons—so long as it is not imposed “without fault.”

Justice Byron White, in a concurring opinion, criticized the Court for having struck what he viewed as an improvident balance. From his perspective, the media were powerful enough to assume liability for reputational harm to a private person whether or not a showing of fault had been made. Justice William Brennan dissented on grounds that the decision underserved First Amendment interests. Justice Brennan voiced concern with the risk of self-censorship when issues of public importance did not implicate public persons.

Mr. Justice POWELL delivered the opinion of the Court.

. . . This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen. . . .

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. They belong to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. . . .

The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. . . .

For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not—to determine, in the words of Mr. Justice Marshall, “what information is relevant to self-government.” We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The ‘public or general interest’ test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. . . .

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. . . .

Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.

Mr. Justice DOUGLAS, dissenting.

The Court describes this case as a return to the struggle of ‘defin(ing) the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.’ It is indeed a struggle, once described by Mr. Justice Black as ‘the same quagmire’ in which the Court ‘is now helplessly struggling in the field of obscenity.’ I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no ‘accommodation’ of its freedoms can be ‘proper’ except those made by the Framers themselves.

Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose prescription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law. This was the view held by Thomas Jefferson and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798—a criminal libel act never tested in this Court and one which expired by its terms three years after enactment. As President, Thomas Jefferson pardoned those who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress. The general consensus was that the Act constituted a regrettable legislative exercise plainly in violation of the First Amendment.

Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be ‘implicit in the concept of ordered liberty.’ But the Court frequently has rested state free speech and free press decisions on the Fourteenth Amendment generally rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of ‘privileges and immunities’ of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgment than the freedoms of speech and of the press. In our federal system we are all subject to two governmental regimes, and freedoms of speech and of the press protected against the infringement of only one are quite illusory. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed.

There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those emotions. It is indeed this very type of speech which is the reason for the First Amendment since speech which arouses little emotion is little in need of protection. The vehicle for publication in this case was the American Opinion, a most controversial periodical which disseminates the views of the John Birch Society, an organization which many deem to be quite offensive. The subject matter involved ‘Communist plots,’ ‘conspiracies against law enforcement agencies,’ and the killing of a private citizen by the police. With any such amalgam of controversial elements pressing upon the jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who venture to discuss heated issues, a virtual roll of the dice separating them from liability for often massive claims of damage.

Since in my view the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below.

Bibliography

Epstein, Richard. “Was New York Times v. Sullivan Wrong?” University of Chicago Law Review 53 (1986): 782.

Kalven, Harry. “The New York Times Case: A Report on “The Central Meaning of the First Amendment.” Supreme Court Review 191 (1964).

Falwell could not sue Hustler for defamation because that cause of action requires a false assertion of fact, and the magazine had not represented the ad parody as “fact.” Indeed, at the bottom of the page, in small print, the ad contained the following disclaimer: “ad parody—not to be taken seriously.” In addition, the magazine’s table of contents flatly stated: “Fiction; Ad and Personality Parody.” Because of the disclaimer and the table of contents, it was clear that the parody was false and therefore that there was no false assertion of fact.

Unable to bring a defamation suit, Falwell sued Hustler for intentional infliction of mental distress. A jury awarded Falwell compensatory damages of $100,000 and punitive damages of $50,000. The case eventually made its way to the United States Supreme Court where, in an opinion written by Chief Justice William Rehnquist, the Court reversed.

The Court phrased the issue as whether “a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most.” In answering that question in the negative, the Court emphasized that the First Amendment emphasizes the “fundamental importance” of allowing people to express themselves “on matters of public interest and concern.” The Court also recognized that “robust political debate” is likely to result in speech that is critical of public officials and public figures who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Moreover, those who comment on public affairs are generally protected against liability. For example, when defamation is involved, the Court’s landmark decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provided that public officials and public figures may not recover unless they can satisfy the actual malice standard. In other words, they must show that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Falwell argued that, in emotional distress cases, the courts should impose liability when speech subjects an individual to “severe emotional distress,” and the “utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress.” In such circumstances, in Falwell’s view, courts should impose liability without regard to “whether the statement was a fact or an opinion, or whether it was true or false.” In other words, the defendant’s intent to cause injury is critical, and “the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.”

Falwell also argued that, even if political satire were generally acceptable, Hustler’s caricature of him was so “outrageous” as to “distinguish it from more traditional political cartoons” and should be subject to liability. While the Court expressed distaste for Hustler’s parody of Falwell, the Court doubted that it was possible to clearly differentiate between traditional political cartoons and more outrageous endeavors. In the Court’s view, “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.” The Court expressed concern that damages would, therefore, be awarded simply “because the speech in question may have an adverse emotional impact on the audience.”

As a result, the Court concluded that Falwell (and other public figures and public officials) may not recover for intentional infliction of emotional distress unless they can show that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. However, since satire and cartoons almost always suggest that they are portraying fiction, this standard can almost never be met. The Court expressed concern that a lesser standard would not provide adequate “breathing space” for “the freedoms protected by the First Amendment.” Since the ad parody did not involve assertions of actual facts, Falwell could not, consistently with the First Amendment, recover damages for Hustler’s ad parody.

Chief Justice REHNQUIST delivered the opinion of the Court.

. . . At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. “[T]he freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole.” We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a “false” idea. . . .

The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” . . .

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective. But even though falsehoods have little value in and of themselves, they are “nevertheless inevitable in free debate,” and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted “chilling” effect on speech relating to public figures that does have constitutional value. . . .

“Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.” . . .

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast’s castigation of the Tweed Ring, Walt McDougall’s characterization of Presidential candidate James G. Blaine’s banquet with the millionaires at Delmonico’s as “The Royal Feast of Belshazzar,” and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth, and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them. . . .

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a “blind application” of the New York Times standard, it reflects our considered judgment that such a standard is necessary to give adequate “breathing space” to the freedoms protected by the First Amendment.

Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.

Bibliography

Post, Robert C. “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell.” Harvard Law Review 103 (1990): 603.

Skolnick, Jerome K. “The Sociological Tort of Defamation.” California Law Review 74 (1986): 677.

Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, NJ: LexisNexis, 2012, 64–69.

“’[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. . . .

Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.”

Deciding whether speech is of public or private concern requires us to examine the “‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ ” As in other First Amendment cases, the court is obligated “to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” . . .

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. . . .

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence. . . .

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” . . .

For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. . . .

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Justice ALITO, dissenting.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.”

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED). . . .

. . .

The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.

First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation—“to increase publicity for its views,” —did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral. It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.

The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their . . . grief,” and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern. . . .

Bibliography

Zipursky, Benjamin C. “Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law.” DePaul Law Review 60 (2011): 473.