In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy or disruptive speech, or resulting violence.But the Court’s longstanding precedents do not allow regulation of speech solely based on its offensive content absent those objective indicia of harm. Psychological research on emotions validates the Court’s approach as it reveals that anger, the emotion most likely to be involved with offensive speech, is inextricably linked with censorship. Put simply, individuals are often angered by demeaning offenses to their personal or social identity, including speech that is critical of their values and beliefs. As a result, they are often stirred to responsive action. The availability of civil lawsuits based solely on emotional harm would thus provide offended plaintiffs with potential tools to censor speech with which they disagree. The Supreme Court has wisely steered clear of such an approach and should continue to do so in Snyder.
Christina Wells, Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment, 1 Cal. L. Rev. Circuit 71 (2010)