U.S. Supreme Court Defamation Holdings Judges Should Read

 
Judging is difficult work, especially when busy judges are unfamiliar with the legal issues they are asked to judge. Below are a few U.S. Supreme Court holdings that I recommend trial and appellate judges tasked to analyze and rule on defamation issues read. Defamation law is complex. There are many twists and turns. Judges who pride themselves on doing everything they can to get the law right will often need to do some independent research and reading to figure out how to competently rule on legal issues that defamation litigators tend to know much better than general practitioners. Two of the most difficult legal issues trial and appellate judges can confront are (1) whether a defamation plaintiff was a public figure when the defamatory statement giving rise to the claim was published and (2) whether the defamatory statement giving rise to the claim involved a matter of public concern when it was published.

Why intentional lies deserve little to no protection from the courts.

Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

Gertz v. Robert Welch, 418 U.S. 323, 340, 94 S. Ct. 2997, 3007 (1974).

Why judges should read all of New York Times v. Sullivan (a case involving an elected public official who brought a defamation lawsuit under Alabama law against the New York Times because it published a paid advertisement about him that alleged he and dozens of other public officials were responsible for “a wave of terror” against “Southern Negro” students) to understand its context and accurately determine whether the facts of the case they are considering can be distinguished from it.

Under Alabama law as applied in this case, a publication is “libelous per se” if the words “tend to injure a person . . . in his reputation” or to “bring [him] into public contempt”; the trial court stated that the standard was met if the words are such as to “injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust . . . .” The jury must find that the words were published “of and concerning” the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494-495, 124 So. 2d 441, 457-458 (1960). His privilege of “fair comment” for expressions of opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So. 2d, at 458.

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

New York Times Co. v. Sullivan, 376 U.S. 254, 267-268, 84 S. Ct. 710, 719 (1964) (emphasis added).

Why judges should read Milkovich v. Lorain if they want to understand how the U.S. Supreme Court has instructed all state courts to analyze defamation claims involving public officials, public figures, or matters of public concern.

In 1964, we decided in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. There the Court recognized the need for “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law “‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech.” Gertz v. Robert Welch, Inc., supra, at 334 (quoting New York Times, supra, at 279).

Three years later, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967), a majority of the Court determined “that the New York Times test should apply to criticism of ‘public figures’ as well as ‘public officials.’ The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons ‘who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.'” Gertz, 418 U.S. at 336-337 (quoting Butts, 388 U.S. at 164 (Warren, C. J., concurring in result)). As Chief Justice Warren noted in concurrence, “our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.'” Butts, supra, at 164. The Court has also determined that both for public officials and public figures, a showing of New York Times malice is subject to a clear and convincing standard of proof. Gertz, 418 U.S. at 342.

The next step in this constitutional evolution was the Court’s consideration of a private individual’s defamation actions involving statements of public concern. Although the issue was intially in doubt, see Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971), the Court ultimately concluded that the New York Times malice standard was inappropriate for a private person attempting to prove he was defamed on matters of public interest. Gertz v. Robert Welch, Inc., supra. As we explained:

“Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.

. . . .

“[More important,] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual.” 418 U.S. at 344-345 (footnote omitted).

Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. First, we held that the States could not impose liability without requiring some showing of fault. See id., at 347-348 (“This approach . . . recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation”). Second, we held that the States could not permit recovery of presumed or punitive damages on less than a showing of New York Times malice. See 418 U.S. at 350 (“Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship . . .”).

Still later, in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986), we held that “the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.” Id., at 777. In other words, the Court fashioned “a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” Id., at 776. Although recognizing that “requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so,” the Court believed that this result was justified on the grounds that “placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result.” Id., at 777-778.

We have also recognized constitutional limits on the type of speech which may be the subject of state defamation actions. In Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970), a real estate developer had engaged in negotiations with a local city council for a zoning variance on certain of his land, while simultaneously negotiating with the city on other land the city wished to purchase from him. A local newspaper published certain articles stating that some people had characterized the developer’s negotiating position as “blackmail,” and the developer sued for libel. Rejecting a contention that liability could be premised on the notion that the word “blackmail” implied the developer had committed the actual crime of blackmail, we held that “the imposition of  liability on such a basis was constitutionally impermissible — that as a matter of constitutional law, the word ‘blackmail’ in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review.” Id., at 13. Noting that the published reports “were accurate and full,” the Court reasoned that “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.” Id., at 13-14. See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988) (First Amendment precluded recovery under state emotional distress action for ad parody which “could not reasonably have been interpreted as stating actual facts about the public figure involved”); Letter Carriers v. Austin, 418 U.S. 264, 284-286, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974) (use of the word “traitor” in literary definition of a union “scab” not basis for a defamation action under federal labor law since used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members”).

The Court has also determined that “in cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.'” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984) (quoting New York Times, 376 U.S. at 284-286).”The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 105 L. Ed. 2d 562, 109 S. Ct. 2678 (1989).

Milkovich v. Lorain Journal Co., 497 U.S. 1, 14-17, 110 S. Ct. 2695, 2703-2705, 111 L. Ed. 2d 1, 14-17 (1990) (emphasis added).

Why judges should almost never hold that a defamation plaintiff who is neither a public employee nor a celebrity is a public figure.

Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.

Gertz v. Robert Welch, 418 U.S. 323, 351-352, 94 S. Ct. 2997, 3012-3013 (1974) (emphasis added).

A decade after New York Times, the Court examined the constitutional limits on defamation suits by private-figure plaintiffs against media defendants. Gertz, supra. The Court concluded that the danger of self-censorship was a valid, but not the exclusive, concern in suits for defamation: “The need to avoid self-censorship by the news media is . . . , not the only societal value at issue . . . [or] this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.” Gertz, supra, at 341. See also Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring). Any analysis must also take into account the “legitimate state interest underlying the law of libel [in] the compensation of individuals for the harm inflicted on them by defamatory falsehood.” Gertz, supra, at 341. See also Time, Inc. v. Firestone, 424 U.S. 448, 456 (1976) (discussing  the “appropriate accommodation between the public’s interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances”). In light of that interest, and in light of the fact that private figures have lesser access to media channels useful for counteracting false statements and have not voluntarily placed themselves in the public eye, Gertz, supra, at 344-345, the Court held that the Constitution “allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times,” 418 U.S., at 348: ” So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id., at 347. Nonetheless, even when private figures are involved, the constitutional requirement of fault supersedes the common law’s presumptions as to fault and damages. In addition, the Court in Gertz expressly held that, although a showing of simple fault sufficed to allow recovery for actual damages, even a private-figure plaintiff was required to show actual malice in order to recover presumed or punitive damages. Id., at 348-350.

Philadelphia Newspapers v. Hepps, 475 U.S. 767, 773-774, 106 S. Ct. 1558, 1562, 89 L. Ed. 2d 783, 790-791 (1986).

Why judges should almost never hold that someone became a limited purpose public figure on the day a defamatory statement was published about him or her if his or her involvement in a public controversy was the direct result of the defamatory statement being published.

We do not agree with respondents and the lower courts that petitioner can be classed as such a limited-purpose public figure. First, the undisputed facts do not justify the conclusion of the District Court and Court of Appeals that petitioner “voluntarily thrust” or “injected” himself into the forefront of the public controversy surrounding the investigation of Soviet espionage in the United States. See Time, Inc. v.Firestone, supra, at 453-454; Gertz v. Robert Welch, Inc., supra, at 352; Curtis Publishing Co. v. Butts, supra, at 155 (plurality opinion). It would be more accurate to say that petitioner was dragged unwillingly into the controversy. The Government pursued him in its investigation. Petitioner did fail to respond to a grand jury subpoena, and this failure, as well as his subsequent citation for contempt, did attract media attention. But the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that his action might be attended by publicity, is not decisive on the question of public-figure status. In Gertz, we held that an attorney was not a public figure even though he voluntarily associated himself with a case that was certain to receive extensive media exposure. 418 U.S., at 352. We emphasized that a court must focus on the “nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Ibid. In Gertz, the attorney took no part in the criminal prosecution, never discussed the litigation with the press, and limited his participation in the civil litigation solely to his representation of a private client. Ibid. Similarly, petitioner never discussed this matter with the press and limited his involvement to that necessary to defend himself against the contempt charge. It is clear that petitioner played only a minor role in whatever public controversy there may have been concerning the investigation of Soviet espionage. We decline to hold that his mere citation for contempt rendered him a public figure for purposes of comment on the investigation of Soviet espionage.

Petitioner’s failure to appear before the grand jury and citation for contempt no doubt were “newsworthy,” but the simple fact that these events attracted media attention also is not conclusive of the public-figure issue. A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. To accept such reasoning would in effect re-establish the doctrine advanced by the plurality opinion in Rosenbloom v.Metromedia, Inc., 403 U.S. 29, 44 (1971), which concluded that the New York Times standard should extend to defamatory falsehoods relating to private persons if the statements involved matters of public or general concern. We repudiated this proposition in Gertz and in Firestone, however, and we reject it again today. A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of New York Times. See Time, Inc. v. Firestone, 424 U.S., at 454.

Nor do we think that petitioner engaged the attention of the public in an attempt to influence the resolution of the issues involved. Petitioner assumed no “special prominence in the resolution of public questions.” See Gertz v. Robert Welch, Inc., 418 U.S., at 351. His failure to respond to the grand jury’s subpoena was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue. He did not in any way seek to arouse public sentiment in his favor and against the investigation. Thus, this is not a case where a defendant invites a citation for contempt in order to use the contempt citation as a fulcrum to create public discussion about the methods being used in connection with an investigation or prosecution. To the contrary, petitioner’s failure to appear before the grand jury appears simply to have been the result of his poor health. 429 F.Supp., at 177 n. 33; App. 91-92 (affidavit of petitioner, June 15, 1976). He then promptly communicated his desire to testify and, when the offer was rejected, passively accepted his punishment. There is no evidence that petitioner’s failure to appear was intended to have, or did in fact have, any effect on any issue of public concern. In short, we find no basis whatsoever for concluding that petitioner relinquished, to any degree, his interest in the protection of his own name.

This reasoning leads us to reject the further contention of respondents that any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction. Brief for Respondents 24; Tr. of Oral Arg. 15, 17. We declined to accept a similar argument in Time, Inc. v. Firestone, supra, at 457, where we said:

“[While] participants in some litigation may be legitimate ‘public figures,’ either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975). As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection . . . , we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault.”

We think that these observations remain sound, and that they control the disposition of this case. To hold otherwise would create an “open season” for all who sought to defame persons convicted of a crime.

Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 166-169, 99 S. Ct. 2701, 2706-2708, 61 L. Ed. 2d 450, 459-461 (1979) (emphasis added).

It is not contended that Hutchinson attained such prominence that he is a public figure for all purposes. Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson’s successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson’s access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstrates that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel.

On this record, Hutchinson’s activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader’s Digest Assn., Inc., post, at 167-168.

Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figure — a conclusion that our previous opinions have rejected. The “use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area.” Time, Inc. v. Firestone, supra, at 456.

Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in Gertz v. Robert Welch, Inc., had published books and articles on legal issues; he had been active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure.

Finally, we cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson’s access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure.

Hutchinson v. Proxmire, 443 U.S. 111, 134-136, 99 S. Ct. 2675, 2688, 61 L. Ed. 2d 411, 431-432 (1979) (emphasis added).

Why judges should almost never hold a statement involved a matter of public concern if it was published for a purpose other than ensuring the public debate on public issues about which the speech concerned will be uninhibited, robust, and wide open.

The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that “[whether] . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context . . . as revealed by the whole record.” Connick v. Myers, supra, at 147-148. These factors indicate that petitioner’s credit report concerns no public issue. It was speech solely in the individual interest of the speaker and its specific business audience. Cf. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 561 (1980). This particular interest warrants no special protection when — as in this case — the speech is wholly false and clearly damaging to the victim’s business reputation. Cf. id., at 566; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772 (1976). Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any “strong interest in the free flow of commercial information.” Id., at 764. There is simply no credible argument that this type of credit reporting requires special protection to ensure that “debate on public issues [will] be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S., at 270.

In addition, the speech here, like advertising, is hardy and unlikely to be deterred by incidental state regulation. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S., at 771-772. It is solely motivated by the desire for profit, which, we have noted, is a force less likely to be deterred than others. Ibid. Arguably, the reporting here was also more objectively verifiable than speech deserving of greater protection. See ibid. In any case, the market provides a powerful incentive to a credit reporting agency to be accurate, since false credit reporting is of no use to creditors. Thus, any incremental “chilling” effect of libel suits would be of decreased significance.

Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761-763, 105 S. Ct. 2939, 2946-2947, 86 L. Ed. 2d 593, 604-605 (1985) (emphasis added).

Why judges must examine the entire record to determine whether someone’s speech addressed broad issues of society at large before they may competently hold the actionable speech involved a matter of public concern.

Deciding whether speech is of public or private concern requires us to examine the “ ‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ Dun & Bradstreet, supra, at 761, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (quoting Connick, supra, at 147-148, 103 S. Ct. 1684, 75 L. Ed. 2d 708). As in other First Amendment cases, the court is obligated “to ‘make [an independent examination of the whole record’] in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984) (quoting New York Times, supra, at 284-286, 84 S. Ct. 710, 11 L. Ed. 2d 686). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759, 105 S. Ct. 2939, 86 L. Ed. 2d 593. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781-3787. While these messages may fall short of refined social or political commentary, the issues they highlight–the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy–are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs–such as “You’re Going to Hell” and “God Hates You”–were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.

Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech–its connection with his son’s funeral–makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, supra, at 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708, and the funeral setting does not alter that conclusion.

Snyder argues that the church members in fact mounted a personal attack on Snyder and his family, and then attempted to “immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its “honestly believed” views on public issues. Garrison, 379 U.S., at 73, 85 S. Ct. 209, 13 L. Ed. 2d 125. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter. Contrast Connick, 461 U.S. at 153, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).

Snyder goes on to argue that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views–in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation’s sinful policies.

 Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term–“emotional distress”–fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U.S. 171, 180, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ ‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U.S. 474, 480, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988).

That said, “[e]ven protected speech is not equally permissible in all places and at all times.” Id., at 479, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 799, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)). Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach–it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18-19, n. 2  (listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.

We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U.S., at 477, 108 S. Ct. 2495, 101 L. Ed. 2d 420. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U.S. 753, 768, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U.S., at 55, 108 S. Ct. 876, 99 L. Ed. 2d 41 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’ ” expression. Bose Corp., 466 U.S., at 510, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (quoting New York Times, 376 U.S., at 270, 84 S. Ct. 710, 111 L. Ed. 2d 686). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U.S. 312, 322, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

Snyder v. Phelps, 562 U.S. 443, 453-458, 131 S. Ct. 1207, 1216-1219, 179 L. Ed. 2d 172, 182-185 (2011) (emphasis added).

Why a statement is not a matter of public concern unless it is a statement about a subject that is of general interest and concern to the public at the time of its publication.

Although the boundaries of the public concern test are not well defined, Connick provides some guidance. It directs courts to examine the “content, form, and context of a given statement, as revealed by the whole record” in assessing whether an employee’s speech addresses a matter of public concern. Id., at 146-147, 75 L. Ed. 2d 708, 103 S. Ct. 1684. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. Id., at 143, n. 5, 75 L. Ed. 2d 708, 103 S. Ct. 1684. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975), and Time, Inc. v. Hill, 385 U.S. 374, 387-388, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). These cases make clear that public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. See Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987).

Applying these principles to the instant case, there is no difficulty in concluding that Roe’s expression does not qualify as a matter of public concern under any view of the public concern test. He fails the threshold test and Pickering balancing does not come into play.

Connick is controlling precedent, but to show why this is not a close case it is instructive to note that even under the view expressed by the dissent in Connick from four Members of the Court, the speech here would not come within the definition of a matter of public concern. The dissent in Connick would have held that the entirety of the questionnaire circulated by the employee “discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which . . . an elected official charged with managing a vital governmental agency, discharges his responsibilities.” 461 U.S., at 163, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (opinion of Brennan, J.). No similar purpose could be attributed to the employee’s speech in the present case. Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. Nor were Roe’s activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image.

The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court’s cases have  understood that term in the context of restrictions by governmental entities on the speech of their employees.

City of San Diego v. Roe, 543 U.S. 77, 83-85, 125 S. Ct. 521, 525-526, 160 L. Ed. 2d 410, 417 (2004) (emphasis added).

By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2015. All rights reserved.

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