"Congress shall make no law...abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances." -- The First
Amendment
Restrictions on freedom of speech always authorise the government to decide how, and against whom, the restrictions should apply. The more authority the government has, the more it will use that authority to suppress unpopular minorities, criticism and dissent. Because freedom of expression is so basic to a free society, it should 'never' be abridged by the government.
Let’s start with some case law:
Free speech issues did not reach SCOTUS until 1919. That year, the Court dealt with free speech for the first time in the case of Schenck v. United States, 249 U.S. 47 (1919). Schenck, a member of the Socialist Party, had been convicted of violating the Espionage Act for mailing anti-war leaflets to draft-age men during WWI. SCOTUS unanimously upheld his conviction. The prevailing legal view at the time was that any speech that had a "tendency" to cause a violation of law could be punished.
The 'Schenck' case was quickly followed by others that ended in decisions equally contemptuous of First Amendment freedoms. Among them was the case of Jacob Abrams, Abrams v. United States, 250 U.S. 616, convicted under the Sedition Act of 1918 (which was repealed in 1920) for distributing leaflets that criticized the American military. However, even though SCOTUS upheld Abrams' conviction, the decision in his case was a watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, stating that speech could not be punished unless it presented "a clear and present danger" of imminent harm. The Holmes-Brandeis dissent marked the beginning of modern First Amendment theory.
SCOTUS declared the inviolability of First Amendment rights for the first time in 1925 in Gitlow v. New York, 268 U.S. 652 (1925), a case that challenged the conviction of a communist revolutionary under New York's Criminal Anarchy law. Although the Court affirmed the conviction, it announced that freedom of speech and press were protected by the First Amendment from federal encroachment, and "are among the fundamental personal rights and 'liberties' protected by the states." This holding paved the way for the Court in Stromberg v. California, 283 U.S. 359 (1931), to rule that States cannot infringe on the First Amendment right to freedom of speech and expression.
Finally, the Court ruled, in Brandenburg v. Ohio, 395 U.S. 444 (1969), that “mere advocacy of the use of force, or of violation of law (in this case, by a Ku Klux Klan leader) is protected by the First Amendment free speech clause. Only inciting others to take direct and immediate unlawful action would be without constitutional protection.
The 'Brandenberg' test is the law today.
Can free speech be limited in any way? Yes.
The government may place "time, place and manner" restrictions on speech as long as they are "reasonable." For example, requiring people to obtain a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, constitutes a justifiable regulation. You can read the plethora of case law on TPM restrictions here: http://www.firstamendmentcenter.org/faclibrary/libraryexpression.aspx?topic=time_place_manner
But restrictions that are overly burdensome or are directed at specific groups or individuals (see: KKK, Nazi groups, or think Phelps) violate the First Amendment. For example, during the 1960s, officials in Southern cities frequently required civil rights activists to apply for permits in order to hold demonstrations, and then granted or denied the permits arbitrarily. Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), is an excellent case to read to understand what fact pattern can cause licencing schemes to be ruled unconstitutional.
Are any forms of expression not protected by the First Amendment? Yes.
SCOTUS has established several limited exceptions to the First Amendment's protections. Here are a couple to consider:
FIGHTING WORDS:
In the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), SCOTUS held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the First Amendment and can be punished. The Court based its decision on the concept that such utterances are of "slight social value as a step to truth." While many may see Snyder v. Phelps as a case open to the Fighting Words Doctrine, such is not the case due to the fact pattern. (Also, see discussion below)
SLANDER, LIBEL, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held “the First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth.”
In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), a public figure shown in a parody must show actual malice to claim he is libeled to prove a case of intentional infliction of emotional distress. Held: Parodies of public figures, which could not reasonably be taken as true, are protected against civil liability by the First Amendment, even if intended to cause emotional distress.
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that “the First Amendment permits states to formulate their own standards of libel for defamatory statements made about private figures, as long as liability is not imposed without fault.”
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court held that “an individual or group can be held civilly liable for ordinary and punitive damages for publishing false assertions about another individual or group, which is not a public figure.” Dun & Bradstreet does stand for the proposition that “context” must be considered. But, “context” must also be within outrageous and personal conduct.
Let’s look at the actual facts in Snyder v. Phelps :
The hideous Phelps family did secure the requisite permits to protest the funeral. The police were well aware that they were there and had insured that the protesters stood outside of the barrier as proscribed in Maryland’s TPM restrictions. No signs were directed, specifically, at Matthew Snyder. In fact, the clan used the same signs that very day in 2 other protests: In Annapolis and at the State Capitol.
The most important facts to keep in mind:
1. The Snyder family did NOT personally see the Phelps family or their signs before, during, or after the funeral. They were told about the protesters’ presence afterward at a family gathering.
2. At the family gathering, the family was told that the Phelps protesters had posted an “Epic” on the internet depicting their protest at the funeral. The Snyder family ELECTED to view the “Epic” on the internet.
3. Petitioner ADMITTED that the Phelps family did not violate Maryland’s TPM restrictions nor did it violate any other criminal statutes, including the State’s funeral protest law that was passed subsequent to the Snyder funeral.
4. None of the signs were directed, specifically, to Matthew Snyder or the Snyder family. As Justice Alito recognised in argument, the “You” in the signs and in the Epic was generic in nature and not directed at any individual or group. It is crucial to bear in mind that not one sign named Snyder. All signs were to the effect: “God Hates F@gs!” (generic and plural), “Get Out Of Iraq!” (political), “God Hates You!” (non-specific), “You’re Going To Hell! (generic), etc.
5. Mr Summers, counsel for the Petitioner, Albert Snyder, argued that neither Sullivan nor Falwell applied because Matthew Snyder was not a public figure (true, but the estate of a decedent cannot sue for defamation).
ISSUES:
1. Can a person or group put anything on the internet?
Mo: Yes, but not without the possibility of liability. One cannot post copyrighted material. One can also not post defamatory statements directed specifically at private individuals. If I post an article that claims, for example, that my neighbour, John Adams, has been embezzling funds from the Co-op Building Fund and such are untrue, I can be sued for defamation. On the other hand, if I post an article that claims, for example, that Obama has sent stimulus funds to a personal offshore bank account and such are untrue, it is highly unlikely that I cannot be sued because he is a public official and he must prove that I posted information that I knew to be false and did so maliciously. An opinion is not defamation – for either private or public persons. If my opinion is that you are fat and I say so, I have not defamed you. You may be hurt, but you have no cause of action. This is even more the case for public figures.
2. Can a person put anything on television, even if it is obnoxious, about a private individual?
Mo: See #1.
3. Does it make a difference if the public comments about political issues are directed to public or private individuals?
Mo: I argue “No.” If I approach a returning soldier and accuse him of participating in an “illegal war” and say that soldiers are “baby killers”, while such behaviour would be despicable, it is permissible and because it is my opinion on a political issue and such matters not whether directed at Obama or G.I. Joe. (Mo: I am not applauding such. Just arguing the law.) On the other hand, the late John Murtha's claims that SPECIFIC soldiers were murderers WAS ALMOST CERTAINLY DEFAMATION, as the facts of the case did not support his statement.
4. To what extent, can a political opinion on a public issue (homosexuality, war, etc.) become the intentional infliction of emotional distress when it is directed at private individuals?
Mo: If my statement is “God Hates F@gs!” and is generic, even if directed at an individual, I do not believe that such can be proscribed by the government or give rise to a tort. Also, this would create a VERY SLIPPERY SLOPE. What if I say “Mohammed was a pervert and all of his followers are hated by the ‘real’ God”? Should the government be able to censor such? No. Should Muslims be able to sue me for intentional infliction of emotional distress? No.
5. Can there be intentional infliction of emotional distress when an individual makes an obnoxious, but generic statement, about another individual or group (soldiers) in an effort to raise public consciousness?
Mo: No.
6. And, most importantly, under what theory of the First Amendment stand for the proposition that public speech or speech on a public or political matter be treated differently depending upon the recipient of the speech?
Mo: There is no First Amendment theory to support such. Where the public speech is on a public or political matter, there can be no intentional infliction of emotional distress. It is free speech and is protected. It cannot matter who receives or hears the speech. If I am standing in Central Park and speaking out against the war or homosexuality and the parent on a dead soldier or a homosexual hears me, there is no INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. (There are cases in Britain that criminalise speech against gays, so be careful). On the other hand, TPM restrictions can be imposed that would proscribe my speech inside of a funeral service, for example. Those are legal.
The Phelps family is disgusting. It should be shunned. Its protests should be met with larger protests. That said, hate speech should never be recognised as a crime or tort. To do so, would eventually result in the government deciding what citizens may or may not say. Do not forget: The government once held this power and it was less than a century ago.
I encourage you all to either listen to the oral arguments here.
Update: On 2 March 2011, the Supreme Court ruled 8-1 (Justice Alito dissented) in favour of Westboro Baptist Church although I would like to see it as they stood up for the First Amendment. You can read the decision here.
Restrictions on freedom of speech always authorise the government to decide how, and against whom, the restrictions should apply. The more authority the government has, the more it will use that authority to suppress unpopular minorities, criticism and dissent. Because freedom of expression is so basic to a free society, it should 'never' be abridged by the government.
Let’s start with some case law:
Free speech issues did not reach SCOTUS until 1919. That year, the Court dealt with free speech for the first time in the case of Schenck v. United States, 249 U.S. 47 (1919). Schenck, a member of the Socialist Party, had been convicted of violating the Espionage Act for mailing anti-war leaflets to draft-age men during WWI. SCOTUS unanimously upheld his conviction. The prevailing legal view at the time was that any speech that had a "tendency" to cause a violation of law could be punished.
The 'Schenck' case was quickly followed by others that ended in decisions equally contemptuous of First Amendment freedoms. Among them was the case of Jacob Abrams, Abrams v. United States, 250 U.S. 616, convicted under the Sedition Act of 1918 (which was repealed in 1920) for distributing leaflets that criticized the American military. However, even though SCOTUS upheld Abrams' conviction, the decision in his case was a watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, stating that speech could not be punished unless it presented "a clear and present danger" of imminent harm. The Holmes-Brandeis dissent marked the beginning of modern First Amendment theory.
SCOTUS declared the inviolability of First Amendment rights for the first time in 1925 in Gitlow v. New York, 268 U.S. 652 (1925), a case that challenged the conviction of a communist revolutionary under New York's Criminal Anarchy law. Although the Court affirmed the conviction, it announced that freedom of speech and press were protected by the First Amendment from federal encroachment, and "are among the fundamental personal rights and 'liberties' protected by the states." This holding paved the way for the Court in Stromberg v. California, 283 U.S. 359 (1931), to rule that States cannot infringe on the First Amendment right to freedom of speech and expression.
Finally, the Court ruled, in Brandenburg v. Ohio, 395 U.S. 444 (1969), that “mere advocacy of the use of force, or of violation of law (in this case, by a Ku Klux Klan leader) is protected by the First Amendment free speech clause. Only inciting others to take direct and immediate unlawful action would be without constitutional protection.
The 'Brandenberg' test is the law today.
Can free speech be limited in any way? Yes.
The government may place "time, place and manner" restrictions on speech as long as they are "reasonable." For example, requiring people to obtain a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, constitutes a justifiable regulation. You can read the plethora of case law on TPM restrictions here: http://www.firstamendmentcenter.org/faclibrary/libraryexpression.aspx?topic=time_place_manner
But restrictions that are overly burdensome or are directed at specific groups or individuals (see: KKK, Nazi groups, or think Phelps) violate the First Amendment. For example, during the 1960s, officials in Southern cities frequently required civil rights activists to apply for permits in order to hold demonstrations, and then granted or denied the permits arbitrarily. Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), is an excellent case to read to understand what fact pattern can cause licencing schemes to be ruled unconstitutional.
Are any forms of expression not protected by the First Amendment? Yes.
SCOTUS has established several limited exceptions to the First Amendment's protections. Here are a couple to consider:
FIGHTING WORDS:
In the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), SCOTUS held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the First Amendment and can be punished. The Court based its decision on the concept that such utterances are of "slight social value as a step to truth." While many may see Snyder v. Phelps as a case open to the Fighting Words Doctrine, such is not the case due to the fact pattern. (Also, see discussion below)
SLANDER, LIBEL, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held “the First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth.”
In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), a public figure shown in a parody must show actual malice to claim he is libeled to prove a case of intentional infliction of emotional distress. Held: Parodies of public figures, which could not reasonably be taken as true, are protected against civil liability by the First Amendment, even if intended to cause emotional distress.
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that “the First Amendment permits states to formulate their own standards of libel for defamatory statements made about private figures, as long as liability is not imposed without fault.”
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court held that “an individual or group can be held civilly liable for ordinary and punitive damages for publishing false assertions about another individual or group, which is not a public figure.” Dun & Bradstreet does stand for the proposition that “context” must be considered. But, “context” must also be within outrageous and personal conduct.
Let’s look at the actual facts in Snyder v. Phelps :
The hideous Phelps family did secure the requisite permits to protest the funeral. The police were well aware that they were there and had insured that the protesters stood outside of the barrier as proscribed in Maryland’s TPM restrictions. No signs were directed, specifically, at Matthew Snyder. In fact, the clan used the same signs that very day in 2 other protests: In Annapolis and at the State Capitol.
The most important facts to keep in mind:
1. The Snyder family did NOT personally see the Phelps family or their signs before, during, or after the funeral. They were told about the protesters’ presence afterward at a family gathering.
2. At the family gathering, the family was told that the Phelps protesters had posted an “Epic” on the internet depicting their protest at the funeral. The Snyder family ELECTED to view the “Epic” on the internet.
3. Petitioner ADMITTED that the Phelps family did not violate Maryland’s TPM restrictions nor did it violate any other criminal statutes, including the State’s funeral protest law that was passed subsequent to the Snyder funeral.
4. None of the signs were directed, specifically, to Matthew Snyder or the Snyder family. As Justice Alito recognised in argument, the “You” in the signs and in the Epic was generic in nature and not directed at any individual or group. It is crucial to bear in mind that not one sign named Snyder. All signs were to the effect: “God Hates F@gs!” (generic and plural), “Get Out Of Iraq!” (political), “God Hates You!” (non-specific), “You’re Going To Hell! (generic), etc.
5. Mr Summers, counsel for the Petitioner, Albert Snyder, argued that neither Sullivan nor Falwell applied because Matthew Snyder was not a public figure (true, but the estate of a decedent cannot sue for defamation).
ISSUES:
1. Can a person or group put anything on the internet?
Mo: Yes, but not without the possibility of liability. One cannot post copyrighted material. One can also not post defamatory statements directed specifically at private individuals. If I post an article that claims, for example, that my neighbour, John Adams, has been embezzling funds from the Co-op Building Fund and such are untrue, I can be sued for defamation. On the other hand, if I post an article that claims, for example, that Obama has sent stimulus funds to a personal offshore bank account and such are untrue, it is highly unlikely that I cannot be sued because he is a public official and he must prove that I posted information that I knew to be false and did so maliciously. An opinion is not defamation – for either private or public persons. If my opinion is that you are fat and I say so, I have not defamed you. You may be hurt, but you have no cause of action. This is even more the case for public figures.
2. Can a person put anything on television, even if it is obnoxious, about a private individual?
Mo: See #1.
3. Does it make a difference if the public comments about political issues are directed to public or private individuals?
Mo: I argue “No.” If I approach a returning soldier and accuse him of participating in an “illegal war” and say that soldiers are “baby killers”, while such behaviour would be despicable, it is permissible and because it is my opinion on a political issue and such matters not whether directed at Obama or G.I. Joe. (Mo: I am not applauding such. Just arguing the law.) On the other hand, the late John Murtha's claims that SPECIFIC soldiers were murderers WAS ALMOST CERTAINLY DEFAMATION, as the facts of the case did not support his statement.
4. To what extent, can a political opinion on a public issue (homosexuality, war, etc.) become the intentional infliction of emotional distress when it is directed at private individuals?
Mo: If my statement is “God Hates F@gs!” and is generic, even if directed at an individual, I do not believe that such can be proscribed by the government or give rise to a tort. Also, this would create a VERY SLIPPERY SLOPE. What if I say “Mohammed was a pervert and all of his followers are hated by the ‘real’ God”? Should the government be able to censor such? No. Should Muslims be able to sue me for intentional infliction of emotional distress? No.
5. Can there be intentional infliction of emotional distress when an individual makes an obnoxious, but generic statement, about another individual or group (soldiers) in an effort to raise public consciousness?
Mo: No.
6. And, most importantly, under what theory of the First Amendment stand for the proposition that public speech or speech on a public or political matter be treated differently depending upon the recipient of the speech?
Mo: There is no First Amendment theory to support such. Where the public speech is on a public or political matter, there can be no intentional infliction of emotional distress. It is free speech and is protected. It cannot matter who receives or hears the speech. If I am standing in Central Park and speaking out against the war or homosexuality and the parent on a dead soldier or a homosexual hears me, there is no INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. (There are cases in Britain that criminalise speech against gays, so be careful). On the other hand, TPM restrictions can be imposed that would proscribe my speech inside of a funeral service, for example. Those are legal.
The Phelps family is disgusting. It should be shunned. Its protests should be met with larger protests. That said, hate speech should never be recognised as a crime or tort. To do so, would eventually result in the government deciding what citizens may or may not say. Do not forget: The government once held this power and it was less than a century ago.
I encourage you all to either listen to the oral arguments here.
Update: On 2 March 2011, the Supreme Court ruled 8-1 (Justice Alito dissented) in favour of Westboro Baptist Church although I would like to see it as they stood up for the First Amendment. You can read the decision here.
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