Law

I have now read all three opinions (by Justices Roberts, Breyer, and Alito) in the recent case of Snyder v. Phelps (2011). My first impulse, when I heard the news reports of the ruling, was to side with the eight-member majority in holding that the First Amendment's Free-Speech Clause prevents recovery of damages for intentional infliction of emotional distress (IIED) (at least where the speech is a matter of "public concern"). I now side with Justice Alito, who dissented. I have two reasons.

First, the First Amendment applies most directly to criminal prohibitions. If Westboro had been prosecuted for lewd, offensive, hateful, or indecent speech, I would have voted to strike the law down as a First Amendment violation. But here we have a tort suit, not a criminal prosecution. It should be harder to find a First Amendment violation in such cases.

My second reason is one of consistency. Given that defamation suits do not violate the First Amendment, why should suits for IIED violate it? What's the relevant difference? Either both torts violate the First Amendment or neither does. One would have expected the Court to make pertinent distinctions within the class of prospective plaintiffs, as it did in the case of defamation. It's harder to prevail in a defamation suit if you're a public official or a public figure than it is if you're a private figure. The plaintiff in Snyder is a private figure, so the First Amendment's protection of those who intentionally inflict emotional distress on him is less, as it would be if he had been defamed.

Is it possible that the Roberts Court intends to revisit the constitutionality of defamation laws? Will the Court hold that defamation suits violate the First Amendment (at least where the speech is a matter of "public concern")? That would at least remove the inconsistency.

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