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Monday, March 03, 2014

Partial Speech-Tort Remedies?

Thanks to everyone at Prawfsblawg for inviting me to guest blog this month.

One of the projects that I'm working on focuses on the ways in which courts resolve speech-tort cases, and on that note, I'd like to pose a question to the room.  Most people are I think familiar with the Snyder v. Phelps case, where the family of a marine who had died while serving in Iraq sued the Westboro Baptist Church for IIED after it had picketed the marine's funeral.  Although the jury deemed the church liable under Maryland tort law and awarded the Snyder family substantial damages, the Supreme Court held that the First Amendment completely barred any such liability against the church.

But let's say that the Snyder Court instead decided to adopt a more Solomonic approach--let's say that it found Westboro liable for IIED, but it held that the First Amendment applied solely to limit the damages to which the Snyders were entitled.  Perhaps they were entitled only to compensatory damages for purely economic losses; perhaps they were entitled to nothing but nominal damages.  The Court's rationale would be that while Westboro's speech has some value and thus should have some degree of First Amendment protection, the Snyders should have at least something to show for the social harm committed against them, even if it's only the purely dignitary benefits associated with getting a public pronouncement of IIED liability against Westboro.

Does this sort of partial-remedy approach appeal to you as a potential means for courts to resolve speech-tort cases, or would it bother you?  Why?  I'm posing this question in the abstract, not in terms of whether such an approach would make sense under the particular facts of the Snyder case.  Otherwise, I'll leave the question vague; my sense is that people's gut reactions tend to differ widely on this, so I'm interested to hear everyone's thoughts.

Posted by David Han on March 3, 2014 at 02:48 PM | Permalink


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I think that's the primary reason why this idea of partial speech-tort remedies doesn't sit well with many people (and perhaps the reason courts don't tend to go down this path). I'll probably tackle this issue in more detail in a future post, but a few quick observations:

- Again, I'm just setting forth this approach in the abstract. Perhaps, in practice, we'd decide that while we don't want to apply these sorts of partial remedies where core political speech is involved, such an approach would apply in the case of, say, commercial speech or speech of a private concern.

- In any case, what counts as low-value (as opposed to protected) speech as a doctrinal matter is, I think, sufficiently malleable that the Court could easily rejigger things to include some subset of IIED-causing speech if it wished. (I've argued before that the history-based test recently adopted by the Court to delineate low-value speech categories largely serves to mask what's essentially an open-ended, normative judgment about the costs and benefits of certain types of speech.)

- On a more theoretical level, I use the term "social wrong" very loosely to refer to conduct that meets established standards for tort liability. Speech obviously can fit the bill in many circumstances--and of course, the First Amendment generally demands that we give speech more protection than other types of conduct. But I don't think this necessarily requires the all-or-nothing approach to speech-tort cases that courts largely take; the general speech-protection principle applies equally in cases where First Amendment concerns translate to the reduction or elimination of the tort damages that would otherwise be available to the plaintiff.

Posted by: David Han | Mar 5, 2014 1:29:13 PM

Seems to be some inherent tension in officially declaring that constitutionally protected speech is a social wrong, no?

Posted by: EC2 | Mar 5, 2014 10:35:28 AM

Justice White was indeed a big proponent of this sort of approach. It was also proposed by a number of scholars in the libel reform context, who argued for things like no-damages libel suits or caps on libel damages.

Incidentally, the two-pronged holding of Gertz itself serves as a good example of this sort of partial-remedy approach. But Gertz is somewhat of an outlier in speech-tort jurisprudence; courts still usually assume an all-or-nothing approach in which either speech is protected and not subject to any tort liability at all, or tort law applies completely unaffected by the First Amendment.

As to your question, I agree that a liability-but-no-damages remedy in the IIED context, rather than the libel context, may not be appealing to many plaintiffs (it would presumably amount to a declaration that the defendant's actions met the elements of IIED). Still, some might value an "official" declaration that a social wrong has been committed against them, a public opportunity to investigate any such wrongful acts, or the opportunity to demand an explanation from the defendant for their actions.

(I should also note that my question also posits the possibility of the First Amendment merely limiting damages in some way rather than eliminating them completely, which would of course result in a very different calculus for plaintiffs and defendants as compared to a no-damages suit.)

Posted by: David Han | Mar 4, 2014 5:08:05 PM

The partial-remedy approach that you describe was expounded by Justice White in his dissents from several post-Sullivan defamation decisions. See, e.g. Gertz v. Robert Welch, Inc., 418 U.S. 323, 393 (1974) (White, J., dissenting) ("I have said before, but it bears repeating, that even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false."). I think it's hard to carry this theory from defamation over to IIED, though. What would the judgment signify in an IIED case? That the defendant was proved to have been mean to the plaintiff?

Posted by: Ken Katkin | Mar 4, 2014 3:04:48 PM

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