Category: Cyber Civil Rights

2

Supporting the Stop Online Piracy Act Protest Day

As my co-blogger Gerard notes, today is SOPA protest day.  Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live.  Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today.  There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates.  Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online.  In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said.  So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill.  “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so.  I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA.  I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill.  As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship.  Cybersecurity is at issue too, and we need to pay attention.  Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills.  But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.

1

The Fight For Internet Censorship

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

16

Bigoted Harassment, Alive and Well Online

With the help of law and changing norms, invidious discrimination has become less prevalent in arenas like schools, workplaces, hotels, and public transportation.  Due to our social environments, anti-discrimination law is fairly easy to enforce.  Because leaders usually can figure out those responsible for discriminatory conduct and ignore such behavior at their peril, bigotry raises a real risk of social sanction.  So too hate discourse in the public sphere is more muted.  A hundred years ago, Southern newspapers and leaders explicitly endorsed mob violence against blacks.  As late as 1940, a newspaper editor in Durham, North Carolina could state that: “A Negro is different from other people in that he’s an unfortunate branch of the human family who hasn’t been able to make out of himself all he is capable of” due to his “background of the jungle.”  In the post-Civil Rights era, the public expression of bigoted epithets and slurs occurs infrequently.  One rarely hears racist, sexist, or homophobic speech in mainstream media outlets.  Some interpret this state of affairs optimistically, as a sign that we are moving beyond race, gender, and arguably even sexual orientation.  The election of the first black President provoked proclamations of our entry into a “post-racial” era.  Many contend that we no longer need feminism anymore.  Prime time television is filled with images of female power, from Brenda Leigh Johnson’s chief on The Closer to Dr. Miranda Bailey’s “take no prisoners” surgeon on Grey’s Anatomy.  Who needs feminism anymore as its goals have been achieved?

But a new era is not upon us.  In some arenas, hate’s explicit form has repackaged itself in subtlety.  In public discourse, crude biological views of group inferiority are often replaced with a kinder, gentler “color-blind racism,” as sociologist Eduardo Bonilla-Silva calls it. The face of modern racism is, in journalist Touré’s estimation, “invisible or hard to discern, lurking in the shadows or hidden.”  The media has also better disguised sexism with its anxiety about female achievement, renewed and amplified objectification of young women’s bodies and faces, and the dual exploitation and punishment of female sexuality, as media scholar Susan Douglas explains.

Offline public discourse may now be on more neutral ground but its online counterpart is not.  While virulent bigotry continues behind closed doors, it increasingly appears in online spaces that blend public and private discourse.  Although televised sports commentary rarely features anti-gay rhetoric, online sports message boards are awash in in-your-face homophobic speech.  Racial epithets and slurs are common online, whether in Facebook profiles, Twitter posts, blog comments, or YouTube videos.  College students encounter more sexually inappropriate speech in online interactions than in face-to-face ones.

Matters have not improved since I started talking and writing about it since 2007, when we woke up, for a brief second, and paid attention to sexualized, misogynistic attacks on Kathy Sierra on her blog and two others and the targeting of female law students on AutoAdmit.  Then, technologist Tim O’Reilly and Wikipedia co-founder Jimmy Wales called for a Blogger’s Code of Conduct.  That effort failed to gain traction, and ever since the bigoted online abuse continues, silencing victims, ruining their online reputations, costing them jobs, and interfering with their ability to engage with others online and offline.  Newsweek’s always insightful Jessica Bennett has published important new piece on online misogyny and the Guardian’s Vanessa Thorpe and Richard Rogers similarly explore the rape threats and abuse of female bloggers.  I will be blogging about bigoted online harassment, as I am amidst writing a book about it and serving on the Inter-Parliamentary Task Force on Online Hate, which recently held a hearing at the House of Commons.  This all has to stop, and now.

0

On the Persistent Pertinence of Race (The Mobile Phone Use Edition)

This has been a notable month for those of us who casually or professionally monitor racism and racialism in our putatively post-racial era. Recent studies and news reports confirm that race apparently continues to matter to population distribution, poverty rates, and perceptions about the fairness of criminal justice in the U.S. None of these recent reports and findings reveal anything particularly new about how this world actually looks and operates, notwithstanding the talk about postracialism in America today.

One piece of data, however, continues to intrigue me.  According to a report from the Pew Internet and American Life Project published earlier this week, racial minorities rely on their mobile phones for Internet access and text messaging on a daily basis much more than whites. There is nothing particularly new in this information. Researchers have been reporting on the pertinence of age, race, gender, and geography on mobile phone use for some time now. And, for what it’s worth, media use generally has also long been shown to be determined in part by race.

It’s the sheer magnitude of this text messaging datum, however, that continues to strike me.  Blacks evidently use their mobile handheld devices to communicate more than people who self-identify as something other than black, doing so at two times the rate of whites. (They are apparently well overrepresented among Twitter users, too.) Certainly, other variables that are meaningfully correlated with race in the U.S. (i.e., wealth, educational opportunity, employment, and income) complicate the story.  But even those factors can’t explain the entire difference, as big as it is.

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1

Exporting the First Amendment

One of the trans-border concerns I’ll address in my book, The Cosmopolitan First Amendment, relates to the exportation of First Amendment norms and standards.  Generally speaking, provincialism and cosmopolitanism both aspire to facilitate the spread of First Amendment norms and standards — although, as I will explain in the book, they differ in important respects with regard to the preferred means of exportation.     

In a broad sense, exportation can take many forms.  For example, refusal to recognize foreign libel judgments may indirectly result in the exportation of American libel standards.  Extraterritorial application of some U.S. laws may effectively export U.S. free speech principles to foreign countries.  Voluntary, or court-ordered, compliance with First Amendment standards in cases where aliens’ expressive or religious liberties are affected abroad would also constitute a form of exportation.  Conditional spending measures could prohibit American companies working abroad from assisting repressive foreign regimes.  Federal legislation might commit the U.S., at least in principle, to facilitating and protecting religious and expressive liberties throughout the world.  Exportation through legislation may be somewhat effective in terms of expanding the domain of First Amendment norms.  These and other measures may result in expansion of the First Amendment’s actual domain, or at least signal an intent to facilitate expressive and religious liberties regardless of location.  In truth, however, these measures are not likely to produce substantial exportation of First Amendment norms and standards.    Read More

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Identifying Those Responsible for a “Living Horror” and Its Signficance for Proposed Federal Law

In what can only be described as the worst side of humanity, the bulletin board Dreamboard hosted a members-only sharing of child pornography, particularly of children under 12.  New members could join the board only if they posted child pornography.  Members had to continue to post images of child porn every 50 days or face removal.  The rules of the board, printed in English, Russian, Japanese, and Spanish, included: (1) “Keep the girls under 13, in fact, I really need to see 12 or younger to know your[sic] a brother,” (2) “don’t avoid nudity in previews. I will NOT accept you if there’s no nudity.  And my definition of nudity is pussy or anal in the shot.  You just waste your own time if you don’t do this.  Because you will not get in, if you don’t follow the rules.”  One section of Dreamboard was titled “Super Hardcore,” and the rules required images and videos of “very young kids, getting fucked, and preteens in distress, and or crying. . . . If a girl looks totally comfortable, she’s not in distress, and it does NOT belong in this section.”  This part of the site featured images of adults having violent sexual intercourse with very young children, including infants.  One file was entitled “2yo assfuck she cries for mommy nasty pthc pedo 1 yo 3 yo 4 yo.”  The board amassed over 120 terabytes of violent sexual rape and abuse of children.

According to the rules of the site, members were to use encryption technologies to prevent detection.  The rules specified precisely which encryption technologies and proxy servers should be used and which should be avoided.  Members did not use their real names, but instead screen names to conceal their identities.  All of this suggests that the board went to great lengths to secure their anonymity.

Early this month, Attorney General Eric Holder, Jr. announced that federal investigators has charged 72 people for violating child pornography laws and more than 50 people have been arrested in the United States.  The defendants included doctors, lawyers, police officers, and a Navy commander, according to the Ellis County Observer.  Thirteen of those charged have pled guilty, and four members have been sentenced between 20 and 30 years.  Around 600 people from around the world were members of the bulletin board, which has been shut down.  The bulletin board used a server in Atlanta.  As Assistant Attorney General Lanny Breuer explained, the site “was a living horror.”  John Morton, director of Immigration and Customs Enforcement, declined to say how investigators overcame the technological precautions used by some of the members.  He did tell the New York Times: “To those inclined to abuse small children, know this: this isn’t a place on the Internet or the planet in which you are truly safe.  It may take us some time, it may take us some effort, but we will find you regardless of a screen name, a proxy server or an encryption effort, period.” Read More

3

Scoring Ourselves to Economic Death

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.”  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout’s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.”  On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t.  But that isn’t really troubling, unless every job or blog post had the effect we hoped it might.  What’s troubling is the trend’s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there’s more to this influence score story but I thought I’d share my initial take.

5

Bullet, So Not Dodged

The question that I had been dreading came at last: “Mom, can I have a Facebook page?”  My daughter provided a strong defense: she’s 13, so she meets Facebook’s Terms of Service age requirement; she’s nearly an adult in her religion’s eyes (her bat mitzvah is in a week); past practices proves she’s responsible; and well, she feels ready.  (And I just discovered, she’s done her homework: see this Yahoo Answers! “My mom won’t let me get a Facebook page, how do I convince her?” thread that I found on my computer).

Next came the conversation.  We talked about how increasingly social media activity is part of one’s life’s biography.  Anything said and done in social network spaces becomes part of who you are in our Information Age.  Colleges may ask for your Facebook password.  Over 70% of employers look at social media data for interviewing and hiring (and sad to say, the outcomes are grim for applicants who over 60% of the time don’t get the interview or job due to social network profiles).  It’s not just what you post that speaks volumes — your social network (friends and their friends) tells some of your story for you.  There goes any control that you thought you had.  FB users often wrestle with whether they should de-friend those whose online personas don’t match their sensibilities (or the way in which they want others to perceive them).  This means that users need to keep a careful eye on their friends’ profiles (as well as ever-changing privacy settings).

That’s a lot of responsibility.  Or, as Bill Keller of the New York Times put it when he allowed his 13-year old daughter to join Facebook, he felt “a little as if I had passed my child a pipe of crystal meth.”  Beyond the potential privacy and reputational concerns that accompany social media use, an online life has other potential perils, like overuse (and thus inattention to studies, face-to-face family time, etc.) that cyber-pessimists underscore (see Nicholas Carr’s The Shallows).  And bullying, serious harassment, bigotry increasingly appear in mainstream social media in ways that kids can’t necessarily avoid (my work explores those problems, see here, here, and here, as well as terrific work by guest bloggers Ari Waldman and Mary Anne Franks).  Of course, there’s also lots of positive stuff emerging from these networked spaces.  Social media outlets like Facebook allow us to enact our personalities.  They let us express ourselves in ever-changing and expanding ways.  FB and other outlets host civic engagement as Helen Norton and I have emphasized.

I wonder, too, if my kid has a meaningful choice.  Can digital natives really stay away from social media if all of their friends socialize there?  And will employers and colleges expect that applicants partake in these activities because everyone else does?  Someday, will resisting having a Facebook profile express something negative about you?  Will it signal that you’re not socially adjusted or successful?  As Scott Peppet underscores in his work, we may be forced to give up our privacy to show that we are indeed healthy, social, smart, and the like.  That’s a lot to process, right?  I’m going to chew on this a while.  Your thoughts are most welcome!

1

Thoughts on Snyder v. Phelps and Future Cases

Thanks so much to Professor Neil Richards (who generously serves as our First Amendment guest expert) for his thoughts on Snyder v. Phelps.  This post aims to build on his insights and contemplates the opinion’s implications for cases of targeted online hate.  In Snyder, Justice Roberts, speaking for the majority, underscored that speech on public affairs “occupies the highest rung of the hierarchy of First Amendment values” and thus deserves “special protection.”  The majority contrasted speech on “matters of purely private significance,” explaining that it enjoys less rigorous First Amendment protection because restrictions on such speech  fail to threaten “meaningful dialogue of ideas” or to risk “‘self-censorship’ on matters of public import.”  Seemingly reflecting its intention to chart a wide territory for matters of public import to provide breathing speech for public discourse, the majority provided select, narrow examples of purely private speech, such as an individual’s credit report and videos of someone engaging in sexually explicit acts.  The majority found that the Church engaged in speech on public affairs because it critiqued broad policies such as the government’s stance on gays in the military (even though some of its signs did target Matthew Snyder and his family) and because the protest occurred in a “public place adjacent to a public street,” the archetype of a traditional public forum that enjoys special First Amendment protection.

The majority rejected the Snyder family’s argument that the protests constituted personal attack on private individuals because Westboro had long spoken on the subjects addressed in its picketing and because “no pre-existing relationship or conflict” existed between Westboro and the Snyders that might suggest that “Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.”  In other words, the Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack.  Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely private ones.  Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.

Consider a neo-Nazi group’s online harassment of Bonnie Jouhari.  Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed her home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder.  With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted.  They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection.  Justice Breyer, in concurrence, alluded to just such a problem.  Breyer asked: “suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern.  The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected.”

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A Few Preliminary Thoughts on Snyder v. Phelps

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy.  The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections.  (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)).  Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court.  In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm.  As the Chief Justice concluded:

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.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting.  First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent.  In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury.  Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure.  What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected.  The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family.  Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech.  Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate.  Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern.  The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim.  The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law.  Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here.  (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal).  So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open.  For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.”  But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is.  Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion.  The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content.  In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail.  The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question.  This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice.  It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent.  Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them.  Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment.  Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.”  But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content.  It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle.  If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory.  The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction.  If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue.  So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.