Freedom of Speech and the Intentional Infliction of Emotional Distress Tort

Abstract

Twenty years ago, Hustler Magazine, Inc. v. Falwell held that even outrageous, severely distressing speech is constitutionally protected, at least when it deals with a matter of public concern, and is said about a public figure. In this short essay, I argue - in the context of Snyder v. Phelps, which will be argued in Fall 2010 before the U.S. Supreme Court - that the same must apply to all speech on a matter of public concern.

Whatever the merits of the public/private figure distinction when it’s applied to false statements of fact, it ought not be applied to opinions, however outrageous they might be. As the Court held in Hustler, “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow [government actors] to impose liability on the basis of the [actors’] tastes or views.” And the same is true whether the plaintiff is a public figure or a private one.

Likewise, I argue that the other arguments sometimes used to defend liability in Snyder v. Phelps - the invasion of privacy argument, the argument that the defendants’ speech interfered with plaintiff’s own religious freedom, and the argument that liability for speech near funeral picketing rests on the time, place, and manner of speech and not its viewpoint - can’t suffice to overcome the defendants’ First Amendment arguments. Contemptible as defendants’ speech is, it can’t be restricted through the vague, content-based, and potentially viewpoint-based emotional distress tort. And this is true even though narrow and content-neutral limits on picketing immediately outside a funeral might well be constitutional.