32.

OTHER CASES WHERE THE SUPREME COURT PRIVILEGED SPEECH OVER PAIN

Free speech is both a cherished and an idealized liberty, but it cannot remain oblivious to the direct and harmful effects that such involuntary exposure to certain words and images can cause.

SNYDER V. PHELPS remains, for the time being, the quintessential example of how little regard the legal system has for the emotional pain of victims brutalized by liberties taken under the constitutional cover of free speech. I fear there may be more such examples in our future. In considering the Snyder decision, Professor Schauer observed starkly that, “[h]owever much pain the protests had caused the Snyders, . . . the First Amendment would not permit a restriction on the speakers who caused it, especially where the pain was caused in the process of engaging in ‘public discourse’ on matters of ‘public import.’ . . . [T]he First Amendment protects even personally harmful speech . . . [and] require[s] victims to endure such harm.”³⁰⁷

The Snyder opinion, to some extent, recalls an earlier decision before the Supreme Court—one that provided endless amusement to the broader culture. In 1983, during the rise of the Moral Majority led by the Reverend Jerry Falwell, Hustler magazine published a parody of an advertisement that implied that Reverend Falwell had lost his virginity by having had sexual relations with his mother in an outhouse. Falwell brought suit, alleging that the parody was libelous, invaded his privacy, and also constituted an intentional infliction of emotional distress. At the federal district court level, Falwell prevailed on the libel and emotional distress claims and was awarded damages in the amount of $150,000. A federal appeals court for the Fourth Circuit affirmed. The Supreme Court rejected both the emotional distress and libel claims. As for libel, given that Falwell was a public figure, the legal standard under New York Times v. Sullivan made such a claim more difficult to prove. But more crucially, the Court ruled that parody is protected speech under the First Amendment.³⁰⁸

The fact that Falwell never committed an act of incest with his mother, making the ad patently false and therefore libelous, meant little to the unanimous Court. Similarly, the Court had very little interest in the emotional distress claim, especially since it had already ruled that Hustler’s First Amendment protections were paramount. The Constitution required Falwell to manage his emotional distress, which was subordinated to the free speech rights of a pornographic magazine. One can surely imagine how such a depraved portrayal in a national magazine could emotionally injure a religious man. No matter. Hustler magazine had the superior right. The lower court’s jury verdict awarding Falwell damages for the intentional infliction of emotional distress was overturned, as it was in Snyder v. Phelps.

I am not comparing the emotional injuries of the two plaintiffs. A parody advertisement in a magazine such as Hustler is distinguishable from the disruption of a military funeral. Falwell was a public figure, after all, and even if he had suffered emotional distress from Hustler’s parody, the magazine had a First Amendment right to publish the ad—absurd and insulting though it was. The Snyders were not public figures; they were just a grieving family. What these two cases demonstrate, however, is that the Supreme Court will seemingly always protect speech, regardless of how provocative or painful it might be, over the tortious injury suffered by the plaintiff.

Similarly, in Cohen v. California, a Vietnam protestor wearing a jacket emblazoned with the message “Fuck the Draft” as he walked through the corridors of a state courthouse was convicted of disturbing the peace. The Supreme Court overturned the conviction and ruled that the jacket was protected political speech and not conduct, however much the words may have offended the sensibilities of those present at the courthouse.³⁰⁹ But the mere fact that the message was political in nature does not mean that no other considerations should apply. After all, Brandenburg v. Ohio, decided after Chaplinsky in 1969, stands for the proposition that a speaker cannot engage in the “incitement of imminent lawless action” and expect to rely on First Amendment safeguards even though a political message of some sort is contained in his or her act of incitement.³¹⁰ Brandenburg outlaws the speech regardless.³¹¹ Cohen is a tougher case from a harm-based perspective. “Fuck the Draft” is clearly political, albeit profane. But Cohen did not wear the jacket with any particular, singular target in mind. The courthouse on that day could have been filled with dissidents opposed to the Vietnam War. They would have cheered him on. Even if some disapproved of America’s policies in Vietnam, they could have simply walked away rather than allowed the message to evolve into an emotional disturbance. Not true, of course, in the matters of Falwell and Snyder, who were clearly the targets of the messages directed at them, and they were not free to leave or avoid the assault.

The intentional infliction of emotional distress is not only a lowly, disfavored tort, it also generates little sympathy in First Amendment jurisprudence—even though emotional harm caused by speech has become fundamentally easier to prove. There are many harm-based, consequentialist approaches to free speech. After all, speech can cause tangible emotional or physical harm to the intended target. It can threaten and intimidate a vulnerable audience. It can cause the kind of devastating humiliation that degrades if not obliterates citizenship, reducing the targets to social outcasts too broken to rejoin the community and engage in the democratic experience. Each of these should warrant further scrutiny into the limits of the First Amendment. Free speech that is responsible for leaving behind such human misery has perhaps outworn its welcome and gone too far in abusing its constitutional privilege. If the harm is tangible, the fact that it arises from another’s speech does not make it beyond the scope of government regulation. Burning a flag is symbolic speech with strong political overtones, although a Supreme Court Chief Justice, dissenting in the flag-burning case, believed that such a violent gesture “is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.”³¹²

Regardless of how one feels about the symbolic act of such political dissent, it is hard to argue that burning the same flag in front of a family that lost a loved one who died defending that flag is the same. Such expressive conduct is an act of violence that a decent society would not countenance out of some misguidedly romantic attachment to First Amendment convictions. Free speech is both a cherished and an idealized liberty, but we cannot remain oblivious to the direct and harmful effects that such involuntary exposure to certain words and images can cause. The same analysis should be true for marching Nazis, cross-burning Klansmen, Muslim-bashing white supremacists, and homophobes who enjoy disrupting the sanctity of family funerals.

Yet, courts are still unpersuaded that speech which inflicts emotional harm is incompatible with civil society. All of these seminal post-1960s free-speech cases, however, preceded the development of neuroscience that now unequivocally establishes an empirical link between assaultive speech and bodily and psychological damage. Emotional harm continues to be minimized and trivialized, and the Supreme Court continues to resist applying the plain language of Justice Murphy in Chaplinsky more liberally—that there, indeed, are some words “which by their very utterance inflict injury.”

It remains true, nonetheless, that listeners assume the risk for a speaker’s provocative language. As Professor Arkes noted, “It is now apparently more reasonable to ask the auditors to turn away or to make some effort to avoid the offensive speech—something that is not always easy to do in public streets or buildings—rather than to ask the speaker to accept some restraints on his behavior in public.”³¹³ Chaplinsky placed the speaker on notice not to speak ill-advisedly because he or she may hit upon a word or word combination that inflicts injury. Cohen shifted the burden onto the listener to always be on alert and to avert one’s gaze or walk away if they should find themselves staring at a jean jacket sporting a profane patch.³¹⁴ Speech deemed presumptively political, as it was in Cohen, will seemingly always override a state law claim in civil tort for emotional distress.

It does not have to be this way. In Chaplinsky, words, by their very utterance, can inflict injury and, in such circumstances, stand nakedly without First Amendment safeguards—even without having to show that a breach of the peace had also occurred. In Cohen, it is the listener who is being told to “effectively avoid further bombardment of their sensibilities simply by averting their eyes.”³¹⁵ Schauer reminds the Cohen Court, however, that “one cannot avert one’s eyes until one’s eyes have seen what one would want to avert them from.”³¹⁶

The famous phrase Justice John Marshall Harlan II wrote for the majority in Cohen, that “one man’s vulgarity is another’s lyric,”³¹⁷ is certainly convincing. It is invoked to assert the impossibility of knowing what configuration of words will cause certain offense in an individual. Searching for the idiosyncrasy of emotional hurt is a fool’s errand, we are told. Insults are subjective; feelings are ephemeral. But it is simply not true, as Harlan also wrote, that “governmental officials cannot make principled distinctions” in all areas involving harmful speech.³¹⁸ Justice Harlan denied that there was any way to standardize speech because it depended entirely on the subjective feelings of the people who hear it. Yet, there is a marked difference between the generalized offense one may experience after reading “Fuck the Draft,” and being invaded, personally, by Nazis on the village green or having homophobes protesting at your son’s funeral. The first is merely a vulgarity addressed to no one in particular, a split-second sighting of something that will likely be ignored or soon forgotten.

“Fuck the Draft” does not single anyone out personally. It does not threaten or intimidate an individual. The other examples are verbal assaults that are personal in nature. They might lead to an immediate, retaliatory, and violent response. And they are likely to result in harm to the intended target. Verbal assaults are delivered to lay claim to the mental state of their victims. If there is a political message to be teased out of the malice, it is merely incidental to its intended purpose. Schauer astutely wrote that, “[t]he word ‘offense’ is rarely used by the target. The word is typically used by others to downplay the magnitude of what the targets are more likely to describe as ‘harm.’”³¹⁹

At least the Snyder case generated the kind of public reaction that might have led, for the time being, to a political solution. Since Snyder v. Phelps was decided, Congress enacted a measure in 2006 that would make it a crime to willfully disturb “the peace and good order” of a funeral held at a national cemetery for a period of one hour both before and after the burial.³²⁰ Acting on Congress’ lead, state legislatures have taken matters into their own hands by passing laws that create protest-free zones at funerals, whereby protesters must maintain a distance of 1,000 feet for one hour both before and after funerals. (The federal law requires only 150 feet.) The supreme courts of at least three states—Nebraska, Missouri, and Minnesota—have upheld these laws. The Iowa legislature voted one hundred to zero to adopt such a measure. “You do not have a constitutional right to infringe on the constitutional rights of the families who are laying fallen loved ones to rest,” State Representative Bobby Kaufmann said. One suspects the “constitutional rights” of grieving families, to which Representative Kaufmann is referring, is a penumbral right to privacy, because the right to grieve is not among the Bill of Rights.³²¹