Category: First Amendment


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.

Watch the Banks First

I have not been a big fan of Wikileaks. I believe in diplomacy and the rule of law as cornerstones of a civilized society. But the recent revelations about a clandestine campaign to discredit Wikileaks supporters forces reconsideration of a pro-state, anti-Wikileaks position.

According to numerous press accounts, the DOJ advised Bank of America (BofA) to consult with a law firm that, in turn, consulted with “security firms” about how to address possible revelations from Wikileaks about BofA. A leaked report “suggested numerous ways to destroy WikiLeaks . . . including planting fake documents with the group and then attacking them when published; ‘creat[ing] concern over the security’ of the site; ‘cyber attacks against the infrastructure to get data on document submitters.'”
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Common Cause Concerned About SCOTUS

The good-government group Common Cause has raised some troubling questions about the political connections of Justices Scalia and Thomas. As Politico reports:

To mark Friday’s anniversary of a court decision that allowed corporations to sink millions into politics, Common Cause, a reform group, is asking the Department of Justice to investigate alleged conflicts of interest involving two Supreme Court justices . . . [I]n a document to be submitted to the department Thursday, Common Cause President Bob Edgar cites appearances by Justice Clarence Thomas and Justice Antonin Scalia at retreats sponsored by Koch Industries, a corporation run by two major Republican donors who helped finance some of the new GOP groups founded after the ruling.

“It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision,” the Common Cause petition asserts.

In an earlier post, I downplayed an Alliance for Justice report on the oil industry ties of Fifth Circuit judges, since such business contacts may be a near-necessity for successful lawyers in the area. A meatier factual record may have to be developed here for investigators to have a sense of whether Court-industry ties are as problematic as Common Cause claims.
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The Aftermath of Wikileaks

The U.K.’s freedom of information commissioner, Christopher Graham, recently told The Guardian that the WikiLeaks disclosures irreversibly altered the relationship between the state and public.  As Graham sees it, the WikiLeaks incident makes clear that governments need to be more open and proactive, “publishing more stuff, because quite a lot of this is only exciting because we didn’t know it. . . WikiLeaks is part of the phenomenon of the online, empowered citizen . . . these are facts that aren’t going away.  Government and authorities need to wise up to that.”  If U.K. officials take Graham seriously (and I have no idea if they will), the public may see more of government.  Whether that more in fact provides insights to empower citizens or simply gives the appearance of transparency is up for grabs.

In the U.S., few officials have called for more transparency after the release of the embassy cables.  Instead, government officials have successfully pressured internet intermediaries to drop their support of WikiLeaks.  According to Wired, Senator Joe Lieberman, for instance, was instrumental in persuading to kick WikiLeaks off its web hosting service.  Senator Lieberman has suggested that Amazon, as well as Visa and and PayPal, came to their own decisions about WikiLeaks. Lieberman noted:

“While corporate entities make decisions based on their obligations to their shareholders, sometimes full consideration of those obligations requires them to act as responsible citizens.  We offer our admiration and support to those companies exhibiting courage and patriotism as they face down intimidation from hackers sympathetic to WikiLeaks’ philosophy of irresponsible information dumps for the sake of damaging global relationships.”

Unlike the purely voluntary decisions that Internet intermediaries make with regard to cyber hate, see here, Amazon’s response raises serious concerns about what Seth Kreimer has called “censorship by proxy.”  Kreimer’s work (as well as Derek Bambauer‘s terrific Cybersieves) explores American government’s pressure on intermediaries to “monitor or interdict otherwise unreachable Internet communications” to aid the “War on Terror.”

Legislators have also sought to ensure opacity of certain governmental information with new regulations.  Proposed legislation (spearheaded by Senator Lieberman) would make it a federal crime for anyone to publish the name of U.S. intelligence source.  The Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act would amend a section of the Espionage Act that forbids the publication of classified information on U.S. cryptographic secrets or overseas communications intelligence.  The SHIELD Act would extend that prohibition to information on human intelligence, criminalizing the publication of information “concerning the identity of a classified source or information of an element of the intelligence community of the United States” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Another issue on the horizon may be the immunity afforded providers or users of interactive computer services who publish content created by others under section 230 of the Communications Decency Act.  An aside: section 230 is not inconsistent with the proposed SHIELD Act as it excludes federal criminal claims from its protections.  (This would not mean that website operators like Julian Assange would be strictly liable for others’ criminal acts on its services; the question would be whether a website operator’s actions violated the SHIELD Act).   Now for my main point: Senator Lieberman has expressed an interest in broadening the exemptions to section 230’s immunity to require the removal of certain content, such as videos featuring Islamic extremists.  Given his interest and the current concerns about security risks related to online disclosures, Senator Lieberman may find this an auspicious time to revisit section 230’s broad immunity.


Advancing the Fight Against Cyber Hate with Greater Transparency and Clarity about Hate Speech Policies

Today, online intermediaries voluntarily seek to combat digital hatred, often addressing hate speech in their Terms of Service Agreements or Community Guidelines.  Those agreements and guidelines tend to include vague prohibitions of hate speech.  The terms of service for Yahoo!, for instance, requires users of some services to refrain from generating “hateful or racially, ethnically or otherwise objectionable” content without saying more.  Intermediaries can advance the fight against digital hate with more transparency and clarity about the terms of, and harms to be prevented by, their hate speech policies, as well as the consequences of policy violations.  With more transparency and clarity, intermediaries can make behavioral expectations more understandable and users can more fully appreciate the significance of digital citizenship, see here, here, here, and here.  The more intermediaries and users understand why a particular policy prohibits a certain universe of speech, the more likely they can then put into practice, and adhere to, that policy in a way that achieves those objectives.

Before seeking to provide guidance on how intermediaries might do that, it is important to recognize that efforts to define hate speech raise at least two significant challenges.  First, many disagree over which, if any, of the harmful effects potentially generated by such speech are sufficiently serious to warrant action.  Second, controversy also remains about the universe of speech that is actually likely to trigger harms deemed important enough to avoid.  So, for example, even if an intermediary defines hate speech as that which tends to incite violence against targeted groups, how do we determine which speech has the propensity to do that?  Much of this lies in identifying the factors relevant to making such causal predictions.  In Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming BU Law Review 2011), Helen Norton and I don’t pretend that that we can make hard choices easy and recognize that intermediaries’ choices among various options may turn on a variety of issues: their assessment of the relative costs of hate speech and its constraint; empirical predictions about what sort of speech is indeed likely to lead to what sorts of harms; the breadth of their business interests, available resources, and the like; and their sense of corporate social responsibility to foster digital citizenship.  Intermediaries’ choices on how to define hate speech and the harms that they seek to avoid — however difficult — can and should be made in a more principled and transparent way. Read More


Recommended Reading: Caroline Mala Corbin’s Ceremonial Deism and the Reasonable Religious Outsider

Caroline Mala Corbin‘s Ceremonial Deism and The Reasonable Religious Outsider (UCLA Law Review 2010) is thought-provoking and important.  Corbin argues that the reasonable person standard at the heart of the Establishment Clause’s endorsement analysis perpetuates Christian privilege rather than ensures religious liberty and equality for all.  In her analysis, Corbin astutely invokes critiques of the reasonable person standard in sexual harassment doctrine.  Here is the abstract:

State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it.

This Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should be evaluated from the perspective of a reasonable religious outsider.


Ammori on Assange, Free Speech, and Wikileaks

At Balkanization, Professor Marvin Ammori has a thoughtful post on the Wikileaks story.  Professor Ammori, who will be guest blogging with us soon, gave me the thumbs up on reproducing his post.  Hopefully, it will spark some interesting discussion on CoOp.  Here is Ammori’s post:

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burnersracists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to writetell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post. Read More

19 Points on Wikileaks

Don’t worry, it’s not another prolix post from me, just commentary on Jack Goldsmith’s Seven Thoughts on Wikileaks and Lovink & Riemens’s Twelve theses on WikiLeaks. (And here’s an FAQ for those confused by the whole controversy.)

Goldsmith, who takes cybersecurity very seriously, nevertheless finds himself “agreeing with those who think Assange is being unduly vilified.” He believes that “it is not obvious what law he has violated,” and Geoff Stone today said that many Lieberman-inspired efforts to expand the Espionage Act to include Assange’s conduct would be unconstitutional. Goldsmith asks:

What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why?

Lovink & Riemens provide something of an answer:
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Ward Churchill and the Future of Public Employee Speech Retaliation Litigation

The Colorado Court of Appeals released its decision in Ward Churchill’s appeal in his First Amendment retaliation case against the University of Colorado last Wednesday (which must be one of the slowest news days of the year). A few years ago, the University terminated Churchill, a tenured professor in the University’s Department of Ethnic Studies, after concluding that he had engaged in several incidents of research misconduct, including evidentiary fabrication, plagiarism, and falsification. These conclusions were reached after several years of internal investigative and adjudicative proceedings to examine allegations of Churchill’s research misconduct. As most everyone is aware, the University did not launch its investigation until after a public outcry arose from controversial statements in an essay that Churchill wrote comparing the victims of the 9/11 terrorist attacks to “little Eichmanns,” in reference to the notorious Nazi war criminal. The perhaps forgotten larger point of the essay was an argument that the 9/11 attacks were provoked by American foreign policy actions.

Churchill sued the University, arguing that both the investigation and the termination violated his free speech rights under the First Amendment because they were undertaken in retaliation for his protected expression on matters of public concern. At trial, after the evidence was submitted, the University moved for a directed verdict on the claim that the investigation (as distinguished from the termination) was an adverse employment action that constituted unconstitutional retaliation, and the trial court agreed. The termination claim went to the jury, which held for Churchill, concluding that the University’s decision to fire him was substantially motivated by his protected speech. The jury also rejected the University’s defense under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), finding that the University had not shown by a preponderance of the evidence that it would have fired Churchill for reasons other than his speech. The jury then awarded Churchill only $1 for his economic loss.

In an unusual move, the parties had agreed prior to trial that the University would waive its sovereign immunity defense in exchange for Churchill’s agreement that the University could assert any defenses that its officials or employees could have raised and that those defenses could be presented after the jury’s verdict. Pursuant to this agreement, the University submitted post-verdict motions asserting that despite the jury’s ruling, the University was entitled to quasi-judicial immunity for its officials’ actions. Churchill filed a motion asking that he be reinstated to his faculty position based on the jury’s finding of unconstitutional termination. The trial court ruled in favor of the University on both claims and entered judgment for the defense, from which Churchill appealed. Read More


Unwitting Mashup of Facebook and Juicy Campus?

In a move that recalls the postings on the now-defunct Juicy Campus, Facebook groups devote themselves to vulgar descriptions of female high school students.  As Donna St. George of the Washington Post reported on November 11, a Facebook page targeted 30 female students from the T.C. Williams High School in Alexandria, Virginia.  It featured photographs of the students accompanied by “offensive or sexual comments.”  Another similar page included a picture of the school’s female principal.  The Daily Beast recently reported that Choate Rosemary Hall boarding school banned access to Facebook through campus computers after discovering a 200-plus-page-long threat penned by female students that disparaged fellow female students.  The Facebook page described Choate students as “hos” and “gross and faked and spray tanned.”

Facebook’s Terms of Service requires users to agree to refrain from bullying, intimidating, or harassing other users.”  Pursuant to that policy (or so we can guess), Facebook took down the page of the 30 girls with the sexually demeaning comments five days after T.C. Williams High School’s principal filed a complaint with Facebook.  Despite Facebook’s real-name culture, the author of the Facebook page has not been identified, an unsurprising result given the advantages provided ill-meaning individuals who want to evade responsibility for online activity.  In the boarding school matter, it seems that a student copied the thread, publishing it for the consumption of students (and everyone else) who were not privy to the Facebook page.  According to the Daily Beast, school administrators “hired a computer forensics expert to track how it had been made public.”  Two of the girls who wrote the post were expelled and four were suspended.

In the T.C. Williams High School matter, the principal went on the school’s PA system for two days in a row to let students know that she thought the page was “totally offensive.”  The Washington Post reports that the principal also asked students to avoid accessing it: “We’re better than this,” she told the students.  If that is all the principal did, it seems a weak showing of moral leadership and civic education.  Hopefully, the incident began a longer-term conversation about many things, including bullying, gender harassment, the risks of online activities, and the responsibilities of students while online.  Now, the school officials’ response in the Choate matter is worth discussing.  Norm Pattis, a Connecticut trial lawyer, contends that the school’s response is too harsh given the dire consequences of a school expulsion on a student’s chances of getting into college.  Prohibiting Facebook on campus may also be an empty gesture.  On the one hand, Choate students have continued to tweet and tumbl on their school accounts.  They also can access social media including Facebook on their mobile devices, raising the same concerns of online civility.  On the other, as Pattis suggests, the school missed a crucial teaching opportunity (beyond a 90-minute discussion with students) on how to be leaders, rather than the quick fix of banning Facebook on the campus network.  That sounds right to me, too.