A Shift on the First Amendment and Internet Speech

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"?

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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. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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