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It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than satisfy the appropriate constitutional standard. Indeed, such a standard can help create a civil space where both robust advocacy and the freedom to avoid robust advocacy can flourish.

This article makes four points about the Fourth Circuit’s decision in Snyder v. Phelps, each of which addresses the need to secure what is purely private from injurious speech.

1. The Fourth Circuit decided that the issues animating the protest of the Westboro Baptist Church (WBC) were matters of public concern. Of course, the “issue[s] of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens” are matters of public concern. But none of these is the issue whose publicness the Fourth Circuit was called upon to consider. That issue is whatever connection Matthew Snyder had to these matters. In the world of speech-based torts, whether a matter is one of legitimate public concern depends on the content, effect, and significance of the plaintiff’s conduct, not the subjective and unilateral assertions of the defendant. WBC must show that that connection is of public concern. Otherwise, every soldier, every Catholic, etc. (no matter how assiduously he or she has avoided the public fray) would be subject to targeted personal assault as long as WBC speaks under the mantle of some public concern (no matter how tenuously connected to the conduct of its target).

2. The Fourth Circuit’s decision turned on the court’s determination that WBC’s speech, even if it was not a matter of public concern, was mere rhetorical hyperbole (and, thus, not provably false; and thus protected opinion). Whatever sense this reasoning makes in the area of public debate, it creates a perverse incentive for WBC to be especially abusive and inflammatory: the more hyperbolically hateful the speech, the more it is constitutionally protected. This doctrinal borrowing from defamation makes little sense where the plaintiff brings an emotional distress claim. First, when the plaintiff’s claim is based on emotional injury caused by non-provable speech, the state’s interest in the protection of private personality is greater. The defamation plaintiff is injured by false statements of fact: where there is no provable factual assertion, there is little chance of reputational injury. No one will believe what is clearly hyperbolic rhetoric. But those same words can heighten a plaintiff’s emotional distress (and the more hyperbolic, the more the harm), whether or not the defendant’s message is verifiable. Second, the value of the speech at issue, and thus the need to offer it constitutional protection, is lesser. Statements meant merely to cause emotional injury to private plaintiffs bear only the most superficial resemblance to protected forms of speech.

3. There is no justification for applying the actual malice standard to emotional distress claims outside the public arena (and little enough inside). The literal application of the actual malice standard offers no protection to the plaintiff claiming emotional injury from rhetorically hyperbolic speech. The victim of a libel can show that the statement was false. The victim of rhetorical hyperbole can prove or disprove nothing that will bring judicial redress. This may be the cost of doing business in the public arena, but there is no reason why a private plaintiff should be left defenseless against emotionally injurious speech that serves no valid communicative purpose.

4. The availability of tort remedies for injurious speech is critical if private individuals are to peacefully exercise their own constitutional rights. The state has a substantial interest in protecting families’ “personal stake in honoring and mourning their dead” and in keeping the most intimate of moments from “unwarranted public exploitation.” Mr. Snyder should have the opportunity to show that WBC’s targeted picketing “was intended to cause him and his family substantial psychological distress,” not to disseminate a public message. Matthew Snyder died in service to his country, but the injuries that took his life left a legacy of trauma for his family. It is now the Supreme Court’s opportunity to decide whether our nation’s profound commitment to the contentious discussion of public issues is also a license for egregiously intrusive and injurious speech.

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2010 Cardozo L. Rev. de novo 1-32