Silencing State Courts

59 Pages Posted: 13 Mar 2019 Last revised: 11 Sep 2019

Date Written: February 20, 2019


In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First Amendment against state common law. Sullivan, on the one hand, was a classical common law decision, taking the internal point of view with respect to state common law. Snyder, on the other, was only concerned with the existence of protected speech, an issue for which state common law was irrelevant. This Article contends that Snyder's absolutism has negative systemic consequences for judicial federalism: courts are unnecessarily prevented from judging certain conduct right or wrong under the local standards of state tort law, even if the First Amendment ultimately immunizes a defendant from liability. Sullivan's methodology is better than Snyder's because it embraced cooperative judicial federalism. Sullivan has underwritten fifty years of productive state-federal judicial dialogue; in just seven years, Snyder has censored every significant opportunity for cross-systemic judicial conversation.

Keywords: First Amendment, free speech, speech torts, judicial federalism, New York Times v. Sullivan, Snyder v. Phelps

Suggested Citation

Gordon, Jeff, Silencing State Courts (February 20, 2019). William & Mary Bill of Rights Journal, Vol. 27, No. 1, 2018. Available at SSRN:

Jeff Gordon (Contact Author)

Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006

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