"Public concern" in Snyder v. Phelps
Michael Masinter
masinter at nova.edu
Thu Mar 3 14:20:23 PST 2011
Assume, contrary to the record, that the plaintiffs had cross appealed
from the dismissal of the defamation claim, and had preserved for
review a claim that Phelps made defamatory false statements of fact
about them in the epic when he wrote: ""Albert and Julie . . . taught
Matthew to defy his Creator, to
divorce, and to commit adultery." If the statements that the parents
taught their son to divorce and commit adultery were false, then is it
really the case that those statements, even if made with reckless
disregard for their probable falsity, cannot be actionable because
their inclusion in the epic shows that they are hyperbole ? Does the
political character of a screed insulate the speaker from liability
for its provably false defamatory statements of fact made with actual
malice?
Hustler Magazine v. Falwell offers little protection from a defamation
claim when otherwise protected speech contains a false statement of
fact. The Hustler cartoon was labeled "ad parody--not to be taken
seriously" and the jury found for Hustler on Falwell's defamation
claim, a finding construed as the jury's determination that the
parody's description of Falwell's first time "was not reasonably
believable." Why does the doctrinal character of the epic show that
the two statements about the parents are not reasonably believable?
I misspoke in an earlier post; of course it was the Snyders, not Ms.
Phelps, who failed to preserve for review issues arising from the
epic, but if those issues had been preserved, wouldn't the epic have
presented the Court with a more difficult question to decide --
whether arguably believable false statements of fact made with actual
malice are nevertheless fully protected speech if contained within a
political or doctrinal screed?"
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masinter at nova.edu 954.262.3835 (fax)
Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> I don't quite see how the epic bears makes the speech
> less a matter of public concern. I should think that the First
> Amendment very clearly protects books, newspapers, Web sites, etc.
> that discuss religious, political, etc. issues - as the supposed
> wrath of God on a sinful nation, coupled with the many American
> deaths supposedly caused by this wrath - even when they use
> particular people as concrete examples of the issue (here is someone
> who died because of God's wrath; you or your loved ones could be
> next!).
>
> If anything, the case for restricting such speech
> seems to me to be weaker than the case for restricting picketing
> that's physically near funeral processions (though I agree that such
> picketing should be protected, at least against content-based
> restrictions).
>
> Eugene
>
> From: Marc DeGirolami [mailto:degirolm at stjohns.edu]
> Sent: Thursday, March 03, 2011 5:46 AM
> To: Marty Lederman
> Cc: Zietlow, Rebecca E.; Bhagwat, Ashutosh A.; Humbach, Prof. John
> A.; ConLawProf; Volokh, Eugene
> Subject: RE: "Public concern" in Snyder v. Phelps
>
> Right, I'm not suggesting that the Court should have looked at
> statements that hadn't yet been made. But I mean that contextual
> (or, as you say, subjective) evidence does count. The Court
> considered that kind of evidence in attempting to understand the
> nature of the signs when it looked to the fact that the Church had
> engaged in these sorts of activities beforehand. The epic material
> could have been used not as evidence supporting its own claim, but
> as evidence tending to contradict the claim that the signs were of
> public concern - that is, to give context to the meaning of the
> signs. That evidence was part of the record before the Court, even
> if it wasn't evidence of an independent claim. If subjective intent
> truly didn't matter, the Court would have examined this particular
> picket entirely in isolation, without reference at all to WBC's
> prior activity. The fact that it looked outside indicates a
> willingness to consider extrinsic sources to divine meaning. Am I
> wrong about that?
>
> It may well be that the overall thrust of the picket was public, but
> the question was much closer than the Court let on, because it
> excluded the relevant evidence. I agree that if one goes with the
> test that Chip suggests - that a little bit of public speech
> immunizes a whole raft of private speech - then Snyder loses. But I
> wonder whether that approach is the same as an "overall thrust" test.
>
> Marc
>
>
> From: Marty Lederman [mailto:lederman.marty at gmail.com]
> Sent: Thursday, March 03, 2011 7:19 AM
> To: Marc DeGirolami
> Cc: Zietlow, Rebecca E.; Bhagwat, Ashutosh A.; Humbach, Prof. John
> A.; ConLawProf; volokh at law.ucla.edu
> Subject: Re: "Public concern" in Snyder v. Phelps
>
> The Court concluded that the Snyders did not preserve their appeal
> concerning the internet expression in the "epic" materials, and
> therefore it was not part of the Court's calculus. Needless to say,
> neither did the Court consider quotes the Church made yesterday
> after the decision was issued. To the extent you're suggesting that
> this other speech, distinct from that at the funeral, demonstrates
> that the Church's "intent" was predominantly to speak to and about
> the Snyders at the funeral, I think the Court's response would be:
> (i) subjective intent isn't what is determinative; and (ii) in any
> event, although the Church obviously intended to *exploit* the
> Snyders, it manifestly did so (as Alito acknowledges) for the
> purpose of drawing more *public attention* to its speech --
> attention that it desires not because it wishes to convey views to
> or about particular service members, but because it is seeking as
> broad a public platform as possible for conveying its views on
> issues of public concern, about government policies.
>
> I think, then, that insofar as the relevant question is whether the
> "overall thrust" of the speech is to the public and about public
> concerns, the Court clearly got the answer right.
>
> The harder question, as I noted earlier, is why "overall thrust"
> should be the proper test, and why the privately directed components
> of the speech (if any) should not be segregated out as possible
> subjects for trial. As others have pointed out, there are other
> contexts -- e.g., obscenity; Claiborne Hardware -- in which the
> Court has concluded that the better course is to view the speech as
> a whole, and not to parse the particulars. I agree that there's
> something to be said for such an approach -- I only wish the Chief
> had done more to justify it.
> On Thu, Mar 3, 2011 at 6:55 AM, Marc DeGirolami
> <degirolm at stjohns.edu<mailto:degirolm at stjohns.edu>> wrote:
> Here is some additional evidence, admittedly after the fact, that
> the WBC intended a personal and non-publicly concerned message when
> it picketed Snyder's funeral:
>
> http://abcnews.go.com/Politics/Supreme_Court/westboro-baptist-church-quadruple-military-funeral-protests-supreme/story?id=13039045
>
> "When you're standing there with your young child's body bits and
> pieces in a coffin you've been dealt some emotional distress by the
> Lord your God.... I very much appreciate the fact that I get to be
> the mouth of God in this matter."
>
> To me, along with what was described in the opinion as the "epic"
> material posted by the WBC after the funeral, this suggests the
> plausibility of Justice Alito's claim that the nature of the signs
> was mostly (even if not exclusively)private and directed
> specifically against Matthew Snyder and his parents. At the very
> least, it suggests that the nature of the signs and protest ought to
> have been decided by a jury.
>
> ________________________________
> From:
> conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
> [conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Zietlow, Rebecca E.
> [REBECCA.ZIETLOW at utoledo.edu<mailto:REBECCA.ZIETLOW at utoledo.edu>]
> Sent: Wednesday, March 02, 2011 10:20 PM
> To: Bhagwat, Ashutosh A.; Humbach, Prof. John A.; ConLawProf
> Cc: volokh at law.ucla.edu<mailto:volokh at law.ucla.edu>
> Subject: RE: "Public concern" in Snyder v. Phelps
>
>
> What's the public concern? Whether homosexuality is a sin or not?
> Even if those signs were about a public concern and not merely an
> expression of hateful speech, weren't some of the signs directed at
> the family and saying things like their son is "going to hell")?
> Why is that a public concern?
>
>
>
> Rebecca Zietlow
>
> ________________________________
> From:
> conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
> [conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] on behalf of Bhagwat, Ashutosh A.
> [bhagwata at uchastings.edu<mailto:bhagwata at uchastings.edu>]
> Sent: Wednesday, March 02, 2011 5:25 PM
> To: Humbach, Prof. John A.; ConLawProf
> Cc: volokh at law.ucla.edu<mailto:volokh at law.ucla.edu>
> Subject: RE: "Public concern" in Snyder v. Phelps
>
> I had the same reaction to the opinion. In the past, the public
> concern/private line had always been articulated in the context of
> either defamation/IIED claims by private plaintiffs, or government
> employees' speech. This opinion seems to suggest that it is a
> general principle of First Amendment law. Does that mean that
> content-based restriction of speech not of public concern is now
> permissible (or not subject to strict scrutiny)? If so, what is the
> status of (nonobscene) pornographic speech such as that in the
> Playboy Enterprises case?
>
> Am I missing something?
>
> Ash Bhagwat
> Professor of Law
> University of California, Hastings College of the Law
> ________________________________
> From:
> conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
> [mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Humbach, Prof. John
> A.
> Sent: Wednesday, March 02, 2011 3:15 PM
> To: 'ConLawProf'
> Cc: volokh at law.ucla.edu<mailto:volokh at law.ucla.edu>
> Subject: "Public concern" in Snyder v. Phelps
>
>
> I'm wondering about the Supreme Court's stress on "public concern"
> in Snyder v. Phelps, where it states, for example: "restricting
> speech on purely private matters does not implicate the same
> constitutional concerns as limiting speech on matters of public
> interest."
>
>
>
> This sort of distinction could have many implications for the
> future, serving as a rationale for authorizing everything from
> government restrictions on an attorney's private legal advice (going
> well beyond those approved last year in Milavetz, Gallop &
> Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2010)) to
> programs for the censorship and, hence, monitoring of private
> correspondence--electronic and otherwise.
>
>
>
> I'd like to know up front that there's something I'm forgetting that
> would cabin any such sweeping exclusion of "private" speech from
> the full benefit of First Amendment protection, but I can't off
> hand think of what it would be.
>
>
> John A. Humbach
> Professor of Law
> Pace University School of Law
> 78 North Broadway
> White Plains, New York 10603
> 914-422-4239
>
> Personal website: humbach.net<http://humbach.net>
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