First Amendment: Freedom of Speech (Content Regulation)

Chapter 11

First Amendment: Freedom of Speech (Content Regulation)

Freedom of speech has been referred to as the most essential liberty. As the Court put it in Palko v. Connecticut (1937), expressive liberty is “the matrix, the indispensable condition of nearly every other form of freedom.” This observation is consistent with a jurisprudential tradition that views freedom of speech as essential to informed self-government. The nation’s first century included some significant abridgments of expressive freedom. Congress and the Adams administration in the late eighteenth century, for instance, enacted the Sedition Act, which essentially criminalized criticism of the president and legislature. This law was targeted at Jeffersonian critics who, upon being elected to power, turned the law against its architects. Antislavery literature generally was banned from the South prior to the Civil War. Despite this suppression, it was not until the twentieth century that the freedom of speech clause was reviewed by the Supreme Court.

The meaning of freedom of speech, like other constitutional guarantees, has evolved from debate over theory, values, and applications. Among the most eloquent statements with respect to the value of expressive freedom, and the need to tolerate and protect speech challenging the very foundations of the political system, is the concurring opinion of Justices Louis Brandeis and Oliver Wendell Holmes, Jr., in Whitney v. California (1927). As they wrote, the framers “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. . . . If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” In trumpeting the virtues of the marketplace of ideas, and the need for government to allow free competition among political views, ideologies, and programs, their views shaped a long-term meaning of expressive freedom in favor of individual rather than authoritative selection.

Perhaps the most straightforward theory was propounded by Justice Hugo Black, who described freedom of speech as an “absolute.” Justice Black’s understanding of the First Amendment was never embraced by the Court. Rather, it has adopted a more complex model of review that conditions freedom upon content, context, or regulatory purpose. Within the resulting hierarchy of expressive freedom, speech essential to informed self-government is the most protected. Less protected are commercial expression and certain types of defamatory speech. Some expression, such as obscenity, intentional incitement of unlawful activity (“Clear and Present Danger”), true threats and fighting words, is categorically excluded from the First Amendment’s protective ambit.


State law historically has established grounds for civil liability activity that constitutes a tort. Although most tort law does not implicate the Constitution, actions for defamation, invasion of privacy, and intentional infliction of emotional distress may operate at cross-purposes with freedom of speech. Libelous or slanderous expression, referred to collectively as defamation, traditionally has been viewed as valueless and thus unworthy of First Amendment protection. Early English law actually made criticism of the king or queen a capital offense. Even in colonial America, truth was an aggravating rather than mitigating factor. A key influence upon the eventual nature of defamation law was the civil rights movement during the middle of the twentieth century. In New York Times Co. v. Sullivan (1964), the Supreme Court reviewed an Alabama jury’s award of damages to state officials who had been criticized in an editorial advertisement published in the New York Times. Realizing that politically motivated defamation actions could chill speech essential to informed self-government, the Court carved out a category of defamation for First Amendment protection. It thus adopted an “actual malice” standard that requires public officials to prove that an allegedly defamatory statement about them was made with knowledge of the falsehood or reckless disregard of the truth. The Court, in Curtis Publishing Co. v. Butts (1968), extended the actual malice standard to public figures, but only with respect to the recovery of punitive damages. In Gertz v. Robert Welch, Inc. (1974), the Court determined that this criterion should be extended to private persons. It also adopted the actual malice standard, in Hustler Magazine v. Falwell (1988), to a public figure’s claim of intentional infliction of emotional distress. More recently, the Court took an even more speech protective stance. In Snyder v. Phelps (2011), the Court ruled that there can be no recovery at all for intentional infliction of emotional distress when the speech in question amounts to an opinion about matters of “public concern.”

Gertz v. Robert Welch, Inc.

Citation: 418 U.S. 323.

Issue: Whether the actual malice standard in a defamation action extends beyond public officials and public figures to private persons.

Year of Decision: 1974.

Outcome: Private persons, unlike public officials and public figures, are not required to establish that a defamatory statement was made with actual malice.

Author of Opinion: Justice Lewis Powell.

Vote: 5-4.

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.

The focus upon public officials and public figures established protection on the basis of an individual’s status. To the extent the aim is to protect speech essential to informed self-government, there is a logical argument that expression should be protected on the basis of subject matter rather than personal function. In Rosenbloom v. Metromedia, Inc. (1971), four justices embraced this premise and extended the actual malice standard to “statements concerning matter[s] of general or public interest.” Justice Hugo Black advocated an even stronger principle that freedom of speech was absolute, and thus defamation laws were barred entirely by the First Amendment. This position effectively prevented the public interest standard from becoming established as a governing principle. It did not end the process, however, of determining the outer boundaries of the actual malice standard. In Gertz v. Robert Welch, Inc. (1974), the Court revisited the scope of the actual malice standard and reverted to a focus upon the status of the person rather than the nature of the speech.

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.

Separating public figures and private persons is not always an easy task. As the Court observed, public figures break down into three categories. The first is what the Court characterized as “involuntary public figures.” Persons in this group are public figures through no intentional effort of their own. The involuntary public figure, as the Court described it, is an “exceedingly rare” category. The second category of public figures are persons who “occupy positions of such pervasive power and influence that they are deemed public figures for all purposes.” The third category comprises those who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” The Court noted that this group represents the most common type of public figure. With these three possibilities for public figure status, the key question for the Court was whether Gertz fit into any of the categories.

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.

Case law in the aftermath of Gertz has construed the public figure concept narrowly. The Court, in Time, Inc. v. Firestone (1976), determined that a high-profile Palm Beach socialite was not a public figure in the context of a divorce proceeding. At issue in this case was an article stating that her divorce had been granted on grounds of extreme cruelty and adultery. Despite the public process and the plaintiff’s regular news conference, the Court determined that she was not an all-purpose public figure and had not voluntarily injected herself into “the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” In Wolston v. Reader’s Digest Association (1979), the Court determined that a public figure had become a private person over the course of time. In Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), the Court determined that the type of damages recoverable may turn upon whether the defamation touches upon a matter of public concern. In a concurring opinion, Justice White urged reconsideration of the actual malice standard. Central to his argument was a sense that constitutional protection of falsehood actually undermined First Amendment interests by distorting the information marketplace. At least in the context of public officials and public figures, the Court has continued to favor a free flow of information even if this stream carries some pollutants. In 2011, the Court reaffirmed its protection of speech dealing with matters of “public concern” in Snyder v. Phelps (2011). Even hateful, seriously offensive speech is protected if it can be found to be sufficiently related to matters of “public concern.” The test for speech that is entitled to special protection because it is a matter of “public concern,” is 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.


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 legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.’ . . .

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.

Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. . . . Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

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.

With the First Amendment made applicable to the States through the Fourteenth, I do not see how States have any more ability to ‘accommodate’ freedoms of speech or of the press than does Congress. This is true whether the form of the accommodation is civil or criminal since ‘(w)hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.’ Like Congress, States are without power ‘to use a civil libel law or any other law to impose damages for merely discussing public affairs.’

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.

It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court’s preoccupation with proliferating standards in the area of libel increases the risks. It matters little whether the standard be articulated as ‘malice’ or ‘reckless disregard of the truth’ or ‘negligence,’ for jury determinations by any of those criteria are virtually unreviewable. This Court, in its continuing delineation of variegated mantles of First Amendment protection, is, like the potential publisher, left with only speculation on how jury findings were influenced by the effect the subject matter of the publication had upon the minds and viscera of the jury. The standard announced today leaves the States free to ‘define for themselves the appropriate standard of liability for a publisher or broadcaster’ in the circumstances of this case. This of course leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as ‘a reasonable man.’ With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.

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.


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).

Hustler Magazine v. Falwell

Citation: 485 U.S. 46.

Issue: Whether a “public figure” can recover damages for intentional infliction of mental and emotional distress when he suffers an outrageous parody (suggesting that he engaged in an incestuous relationship with his mother) in a pornographically oriented magazine.

Year of Decision: 1988.

Outcome: Parodies and satire are speech, within the meaning of the First Amendment, and no recovery is permitted unless the parody involves a false assertion of fact that the parodist knew was untrue or acted in reckless disregard for whether it was true or false.

Author of Opinion: Chief Justice William Rehnquist.

Vote: 9-0.

Political satire has been a part of American political dialogue since the nation’s founding. However, satire can sometimes be brutal and can inflict emotional distress on the subject. In such cases, there is a natural tension between the tort interest in providing compensation for mental and emotional distress and the constitutional right to freedom of speech.

Hustler Magazine v. Falwell presents this tension in dramatic relief. The Reverend Jerry Falwell was a nationally prominent minister who was “active as a commentator on politics and public affairs.” He was the host of a nationally syndicated television show and the founder and president of a political group known as the “Moral Majority.” He was also the founder of Liberty University in Lynchburg, Virginia, and he authored a number of books and publications. Hustler Magazine, Falwell’s antagonist, was a pornographic magazine that frequently published graphic and base material.

In 1983, Hustler Magazine decided to parody Falwell using a Campari Liqueur advertisement. The actual Campari ads portrayed interviews with various celebrities about their “first times.” Although the advertisements actually focused on the first time that the celebrities had sampled Campari, the ads played on the double entendre of the first time that the interviewees had engaged in sex. Hustler Magazine mimicked the Campari format and created a fictional interview with Falwell in which he stated that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody was written in such a way as to suggest that Falwell is “a hypocrite who preaches only when he is drunk.”

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.”

While the Court agreed that utterances designed to inflict emotional distress should not “receive much solicitude,” the Court disagreed with Falwell. The Court noted that “many things done with motives that are less than admirable are protected by the First Amendment.” Relying on its prior decision in Garrison v. Louisiana, 379 U.S. 64 (1964), the Court noted that, even when a speaker or writer is motivated by hatred or ill-will, his expression may be protected by the First Amendment. Otherwise, there might be a chilling effect on speech. The Court held that these principles apply with particular force to political cartoonists and satirists, recognizing that cartoons and satires have consistently played a significant role in political discussion since the very beginning of the country, and such cartoons were rarely fair and reasoned. For example, early cartoonists had portrayed George Washington as an ass. Moreover, cartoons are “often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal” and attempt to bring “scorn and ridicule and satire” on the recipient. In the Court’s view, such representations are “usually as welcome as a bee sting.” But the Court emphasized the political importance of such satire noting Thomas Nast’s sustained “graphic vendetta against William M. ‘Boss’ Tweed and his corrupt associates in New York City’s ‘Tweed Ring.’”

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.

Falwell is an important decision for free speech in this country. It continues the Court’s well-established tradition of providing a high level of protection for those who comment on public affairs, and makes it extremely difficult for politicians and public figures to recover against those who comment on their actions. It also provides protection for the long-established practice of political satire.


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. . . .

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently “outrageous.” But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment:

“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.


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.

Smolla, Rodney A. Jerry Falwell v. Larry Flynt: The First Amendment on Trial. Urbana: University of Illinois Press, 1990.

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

Snyder v. Phelps

Citation: 562 U.S. 443.

Issue: Whether the First Amendment shields the members of the Westboro Baptist Church from tort liability for their speech in this case.

Year of Decision: 2011.

Outcome: Yes. The speech of the church members who picketed near the funeral of a military service member was of “public concern” and therefore was entitled to special protection under the First Amendment.

Author of Opinion: Chief Justice Roberts.

Vote: 8-1.

For many years the members of the Westboro Baptist Church have picketed military funerals in order to express their belief, among other things, that God hates the United States for its tolerance of homosexuality, particularly in the military. In March 2006 Westboro founder Fred Phelps and six members of the Church, traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in the line of duty. The church members obeyed the local ordinances by picketing on public land approximately 1,000 feet from the church where the funeral was held. The church members peacefully displayed their signs, which included such messages as: “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Thank God for IEDs,” “God hates you,” and “You’re Going to Hell.” Matthew Snyder’s father (Snyder) observed the tops of the picketers’ signs when driving to the funeral. Mr. Snyder later learned what was written on the signs while watching a news broadcast later that night. Mr. Snyder sued for emotional damages.


Chief Justice ROBERTS delivered the opinion of the Court.

. . . Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’” The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

“’[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. . . .

Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” . . .

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.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

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.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

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. . . .


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


Obscene expression, like defamation, traditionally has been categorically unprotected by the First Amendment. At the time of the nation’s founding, state laws prohibiting vulgar, profane, and obscene expression were commonplace. Federal regulation of obscenity traces back to the Comstock Act of 1875, which criminalized dissemination of obscenity through the mail. In its seminal decision on obscenity, Roth v. United States (1957), the Supreme Court held that the social value of obscenity was too slight to deserve First Amendment protection. Despite its consistency on this point, the Court has found itself challenged in trying to define obscenity. Reflecting the exasperation experienced by the Court in trying to capture obscenity in an objectifiable manner was Justice Potter Stewart’s observation, in Jacobellis v. Ohio (1964), that, even if he could not describe obscenity, “I know it when I see it.” After years of frustration, the Court in Miller v. California (1973) set forth a framework for defining and determining obscenity. In New York v. Ferber (1982), the Court determined that child pornography, even if not obscene under Miller, could be categorically prohibited without offense to the First Amendment.

Miller v. California

Citation: 413 U.S. 15.

Issue: Whether expression must be utterly lacking in redeeming social value to be found obscene.

Year of Decision: 1973.

Outcome: The state is not obligated to demonstrate that allegedly obscene material is “utterly without redeeming social value.”

Author of Opinion: Chief Justice Earl Warren.

Vote: 5-4.

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