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Thursday, July 15, 2010

Amicus Brief by First Amendment Professors in Snyder v. Phelps

Christina Wells of the University of Missouri Law School has put together a group of law professors who teach and write on the First Amendment to file an amicus brief in support of protecting the offensive speech at issue in Snyder v. Phelps.  I have joined Chris Wells on the brief, as have Alan Chen, Heidi Kitrosser, Ronald Krotoszynski, Jr.,  and Timothy Zick. Charles F. Smith of Skadden, Arps, Slate, Meagher & Flom is counsel of record, along with Slone Isselhard and Jessica Frogge.

The brief is available here at  here and, and it should be available on the ABA site at some point today.  The brief emphasizes that the protesters involved in the case were complying with all applicable laws and with official directives to stay several hundred feet away from the funeral of fallen Marine Matthew Snyder.   In fact, Mr. Snyder, the father of the deceased, did not see the content of the Phelps' signs until he viewed news coverage of the event and later went to the Phelps' website.  Thus, any disruption of Snyder's mourning, which formed the basis of his IIED and invasion of privacy claims, was based solely on the emotional impact (i.e., the offensiveness) of the Phelps' constitutionally protected speech.

In the brief, we argue that the offensive speech at issue in the case falls squarely within the bounds of First Amendment protected speech.  First, the Supreme Court has long protected offensive speech because it contributes to discourse on issues of public interest and because efforts to censor it often result from antipathy towards the speaker's message.  Second, the Court has never found a captive audience in a public forum based purely on the content of speech.  Abhorrence for the expression in the Snyder case does not justify creating a new dignity-based privacy interest that would allow censorship of unwanted or offensive speech.  Third, the First Amendment does not allow punishment of speech solely because of its emotional impact on the listener.  For this reason, the Court typically requires external indicia or harm before finding speech unprotected.  The Court should not permit evasion of these objective requirements by allowing tort liability under theories of invasion of privacy  or intentional infliction of emotional distress in the Snyder case.  Permitting tort liability for offensive speech would chill public discourse by allowing massive damage awards based on subjective criteria.  Categorizing the peaceful funeral protest in Snyder as unprotected speech contradicts the Court's existing jurisprudence and undermines the very purpose of the First Amendment. 

As you may know, Chris Wells also has written the definitive article on funeral protests.


Posted by Lyrissa Lidsky on July 15, 2010 at 06:07 AM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink


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How about public protests of the signers of this amicus brief for their views on funeral protests at their universities/law offices?

Posted by: Shag from Brookline | Jul 16, 2010 6:53:49 AM

My question remains: Why did the Court grant cert here?

Posted by: Howard Wasserman | Jul 15, 2010 10:07:52 PM

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