A Shift on the First Amendment and Internet Speech

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William Shakespeare would have liked Justice Stephen Breyer. At oral argument, Breyer does not just hurl tendentious questions at hapless counsel. Like Hamlet, he likes to hear himself think.

The most significant moment in Wednesday's bizarre oral argument in Snyder v. Phelps, the Westboro Baptist Church funeral-picketing case, may be this question from Breyer to Sean Summers, the lawyer representing grieving father Albert Snyder. Snyder's claim was that picketing his son Matthew's funeral (even at a distance), and publishing an "epic" ridiculing Matthew's religious upbringing (even though on a website not sent to the family) constituted "intentional infliction of emotional distress." Straightforward application of First Amendment precedent suggests that the claim can't succeed. But Breyer seemed willing to think aloud about whether new precedent is needed:

So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.

Breyer went on to speculate about a radical new rule for such cases: allow compensatory damages--intended to repair actual harm done (like the effect on Albert Snyder's health) by the speech--but not punitive damages, which are designed to deter others from doing the same thing.

Note long before, in an interview on Good Morning America, George Stephanopoulos asked Breyer whether the nature of free speech has changed in a world where threatened Koran burning by obscure publicity-hounds in Florida could spark riots in Kabul. Breyer responded:

And you can say -- with the Internet, you can say this. You can't shout fire in a crowded theater. Holmes said [the First Amendment] doesn't mean you can shout 'fire' in a crowded theater. Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? It will be answered over time in a series of cases which force people to think carefully.

By and large, the Rehnquist Court solidified the strong pro-speech jurisprudence of the Warren and Burger Courts. In cases like Ashcroft v. Free Speech Coalition and Reno v. ACLU, the Court's majority applied those principles squarely to what Justice Stevens called "the vast democratic fora of the Internet." Government was to keep its hands off regulating speech on the basis of its subject matter or viewpoint. That extended even to high-tech computer-graphic depictions of child pornography; the Roberts Court last term extended First Amendment protection even to videos of animal abuse and cruelty.

But as Dahlia Lithwick noted in a series of prescient posts (here, here, and here) at the end of last term, the Internet is making some Justices uneasy. Some of them may be quietly thinking what Breyer is willing to say aloud--we need new rules.

The unease surfaced last term. When a federal district judge approved a plan to allow video of the Proposition 8 trial in California to appear on YouTube, the Court stepped in and voted, 5-4, to bar not even release to YouTube, but even closed-circuit transmission to five federal courthouses in other cities. The Court's opinion explained that "some of [the gay marriage opponents'] witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment."

In Doe v. Reed, the Court heard a plea from gay-marriage opponents that their signatures on initiative petitions, public under state law, should be kept secret to protect them from retaliation by gay-rights advocates. The Court voted 8-1 to permit disclosure. But the opinion by Chief Justice Roberts made clear that the opponents had not exactly lost. They had argued that all initiative petitions should be secret. The case was remanded for a trial on the issue of, in essence, whether opposing gay marriage was so particularly dangerous that it would expose petition signers to unique danger.

In a concurrence, Justice Samuel Alito wrote sympathetically of the perceived danger of having a signer's name made public: "The widespread harassment and intimidation suffered by supporters of California's Proposition 8 provides strong support for an as-applied exemption in the present case." Their names on the internet could be combined with existing websites to reveal information about where they lived and worked, and about their families, he said. "The potential that such information could be used for harassment is vast."

In the Snyder argument last week, Alito asked Margie Phelps, the repellent lawyer for the Westboro Baptist Church (of which she is a member by blood), whether the First Amendment would protect a protester, discussing the public issue of war, who accosted an elderly grandmother who had visited the grave of a son killed in war. And what if a protester, intending to discuss the public issue of race, came up to an African American on the street and began "berating that person with racial hatred"?

When Phelps indicated that the race example might involve protected speech, Justice Anthony Kennedy (the Court's leading First Amendment proponent) jumped in to note that "all of us in a pluralistic society have components to our identity" such as age, race, political views or religion. "Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments."

At this point a vote-counter would start to get nervous. The argument had produced reservations from Justices Alito, Breyer, Kennedy, and Roberts. Thomas, who as usual said nothing, harbors deep suspicion of publicity in general. (His was the lone dissenting vote in the initiative-petition case). That may make five votes to take a deep look at a long line of precedents protecting public speech that is offensive, indecent, and even vicious.

Whether that would be a good or a bad thing depends on your point of view. But in either case, it throws into stark relief the fact that our major First Amendment cases come largely from an era when "speech" meant Norman Thomas on a soapbox and "press" denoted men yelling "Copy!" as they pounded out on upright Underwoods words to be hawked by children on the streets. Speech and press--no matter how caustic and cruel--were carried away by the wind or used to wrap fish.

Today, Internet speech has three startling characteristics that may underlie Justice Breyer's unease. It is, first of all, instantaneous. Blog posts, often composed in the heat of rage, go up within seconds of completion. Second, it is ubiquitous. This post on TheAtlantic.com may be read in Belarus or Burkina Fasso (or, less likely, by some Justice) within seconds of its posting. Thus, a vicious "epic" composed by the Phelpses in Topeka reaches the grieving Albert Snyder through the medium of Google. Finally, it is persistent. Almost everything that has ever been on the World Wide Web is still there; even if the original poster takes it down, it has usually been copied, reposted, and archived elsewhere. This kind of speech could easily seem like a different creature altogether than newspapers or even broadcast TV.

The Justices themselves have had their brushes with the unique reach of Internet speech. In May 2009, students in a law-school class at Fordham, at the suggestion of their professor, compiled a "dossier" of publicly available information on Justice Scalia, including his wife's email address, photos of his grandchildren, and what he likes to eat. Scalia snapped that the professor's project was a display of "perfectly legal, abominably poor judgment."

A professor at Georgetown, as part of an exercise in a criminal-justice class on the need to verify anonymous tips, told his class that the Chief Justice was considering resignation. Somehow, in the half-hour of class time before the professor told the students the story was false, it made its way to the Web and prompted dozens of calls to the Court. Roberts's own most humiliating moment--his botching of the constitutionally prescribed presidential oath--went near viral, as did Justice Alito's elaborate grimace and apparent whisper of "not true" when President Obama in his State of the Union address criticized the Court's decision in Citizens United.

Which brings us back to Stephen Breyer and his Hamlet-like musing at oral argument that "we need a rule or we need an approach or we need something to tell us how the First Amendment in that instance (broadcast or Internet viciousness) will begin to -- enter and force a balancing."

We can hope that, like Hamlet, Breyer lets his native hue of resolution be sicklied o'er with the pale cast of thought. If this Court is poised to begin to force that new balancing, Snyder v. Phelps--a private dispute between two very small-time parties, which attracted little input to the Court from the Internet community--would be a terrible place to begin.

And anyway, there may not be nine people in the nation worse suited to the task. Today's Justices are hardly netizens. Chief Justice Roberts, in oral argument two years ago, revealed that his idea of tech savvy was "the latest version of WordPerfect, or whatever it is." The Court's grasp of technology is best summed up by the fact that advocates who appear there after long hours reading Lexis and Westlaw receive a souvenir--a genuine quill pen.

If there was ever a time for halting steps, it is this one. The situation on the Internet in many ways is bad; but that doesn't mean that nine "helpful" techno-ninnies could not make it worse.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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