Tuesday, July 12, 2011

SPEECH vs. EMOTIONAL INJURY--Supreme Court: Right on the Funeral Protests, Part 4

[Back! Semester's end, exams, grading, tedious admin chores, time with the youngest son graduating from college and preparing for graduate school, etc., etc., etc. And yes, some R & R, including a trip to Kentucky for a visit to Churchill Downs and for some local bourbon. 
Now it's back  to this blog. So much to discuss: New York's Marriage Equality (If we can get it done here, we can get it done anywhere ! Bravo to my home state, striking a blow for civil rights and against nonsense.), the Supreme Court's latest decisions, the year in review, the Justices' records, ditto for the NY Court of Appeals and its Judges, and so much more. But 1st, one last consideration of free speech related to that funeral protest case.]

Consider these 2 statements:
1) Your mother is a whore and she's going straight to hell.
2) Your mother is a whore and she's going straight to hell.

Yes, the words are the same. But let's give them different contexts.

For the 1st, the speaker is at a private neighborhood party, saying this loud enough so others can hear, angrily addressing the mother's son whom he dislikes for personal reasons. The speaker actually believes what he is saying, but he is mistakenly relying on a vicious, false rumor.

Under these circumstances, this speech is not free--i.e., it's not constitutionally protected. For a number of reasons.
It's defamatory: it's false, spoken so others can hear, and injurious to the mother's reputation.
It's "fighting words": it's the sort of speech that is likely to incite a normally reasonable, law-abiding, prudent person to fight.
And it likely constitutes the tort of intentional infliction of emotional distress: it was spoken for the purpose of causing substantial emotional injury, and its very utterance, especially with others present and listening, certainly would.
So, for these reasons and perhaps others, the speech in this context may be prohibited and penalized.

Now for the 2d context. Suppose the speaker is part of a religious rally and he's protesting the appointment of a government official, whose son is extolling her virtues and accomplishments to a gathering of supporters. The speaker--actually, he's holding a poster that says what he thinks--is standing across the street from that gathering, he's not interfering with it physically or otherwise, and as in the 1st context, he mistakenly believes his words.

Under these circumstances, the speech is almost certainly protected by the First Amendment. For several reasons.
It's religious speech: the speaker is expressing his religion-based condemnation of what he believed to be the government official's sexual conduct, as well as his religious belief of the consequences of that conduct.
It's political speech: this is core First Amendment speech, expressing views about government and its officials. If nothing else, constitutional free speech protects criticism of government and prohibits government from outlawing or punishing criticism of itself.
Related to the latter, the speaker actually believes what he's saying: except for deliberate lies or complete disregard for a statement's truth or falsity, speech about public issues and public officials is constitutionally protected--even if it turns out to be inaccurate. This insures a robust debate about public matters. Just think of how much discussion of government and politicians would be stifled if all indelicate and ultimately inaccurate statements about them could be penalized. Only the king's English and only certifiably accurate statements covered by free speech? Our public discourse might be elevated, but there would also be precious little of it. And most of us would be prosecuted.
Additionally, the speaker is not disturbing the peace: the gathering in support of the government official isn't being crashed, the attendees at it are not being hindered, the son's talk about his mother is not being interrupted--there is no disturbance of the gathering at all. The son and his mother's supporters undoubtedly don't like what the speaker is saying (if they are even aware at the time). But mere like or dislike for commentary on public matters is surely not a test for First Amendment protection.
In any event, the protest in the 2d context would seem to fall well within the scope of free speech.

The pertinent question, then, is into which context does the funeral protest of the Westboro Baptist Church in Snyder v. Phelps fall?

The anti-gay, anti-Army, anti-soldier condemnations of the protesters might be viewed as "fighting words." They might also be viewed as amounting to the tort of intentionally inflicting emotional distress. As such, the funeral protests would not be constitutionally protected.

But the protesters' condemnations were expressions of their religious beliefs. They were also expressions of their political views about gays and lesbians serving in this country's military forces. They ardently believed what they were expressing about these matters of public importance. And they were not disturbing the peace--in fact, their protest was barely visible from the funeral and their words not visible or audible at all.

This is much more like the 2d (constitutionally protected) context above than like the 1st (unprotected) one. The son in that 2d context might have been incited to violence by the religious protester's"fighting words" about his mother. He might well have suffered emotional distress because his mother was being called a whore and was being called deserving of eternal damnation. But he would have been reacting to public commentary about a public matter.

The same when physicians who perform abortions are subject to protests that they are murderers and will go to hell. When atheists (or members of one religion) are condemned by believers (or members of another religion) for being [fill in the blank] and also headed for hell. When a commentator calls a liberal a socialist or Marxist. Or calls a conservative a fascist or war criminal.

Indelicate? Yes. Emotionally or psychologically hurtful? Yes. But matters of public concern? Yes. Part of our robust and oftentimes heated public discourse? Yes.

So, constitutionally protected? Yes. Again, the Court got it right in that funeral protest case.

Now, what about the more recent case about the violent video games? More accurately, about the sale of those violent video games to minors? That's the next post on New York Court Watcher.