The relationship between the First Amendment’s protections for free speech and the common law’s tort remedies for victims of defamatory or otherwise damaging statements has always been a complex one. As U.S. Supreme Court Justice Elena Kagan pointed out before she was appointed to the bench, libel law is “subject to a bewildering variety of constitutional standards.” (Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 473 (1996).) Some more recent scholarship points out how this is still the case, perhaps increasingly so, in the wake of the U.S. Supreme Court’s highly publicized decision in Snyder v. Phelps. In that case, the Court upheld the Westboro Baptist Church’s right under the First Amendment to protest the funeral of a fallen U.S. Marine Corps servicemember, even where the message of the protest was extremely offensive.
One problematic aspect of the Court’s decision in Snyder (especially from an anti-SLAPP perspective) is the sweeping extent to which the Court found speech concerning matters of public concern to be immune from liability. (California’s anti-SLAPP law protects speech in a public forum concerning matters of public interest, among other categories.) Specifically, the Court found that the Westboro Church’s speech on matters of public concern, although offensive, was protected under the First Amendment from liability under an intentional infliction of emotional distress (IIED) theory. The Court did not consider, however, whether speech about matters of public concern should receive less or different protection from IIED liability where the subject of the speech is a private individual, rather than a public figure.
As Prof. Jeffrey Shulman, writing in the Cardozo Law Review, points out, the Court’s failure to make this distinction presents a problem. (Text of Prof. Shulman’s article here.) Can a private individual always be brought unwillingly into the public sphere, so long as the subject matter of the speech is an issue of public concern? This hardly seems right.
Prof. Eugene Volokh, however, points out in response to this line of criticism that the private individual/public figure distinction has only been used to determine the degree of culpability (negligence or malice) necessary to hold a defendant liable for making false statements of fact. Protecting private plaintiffs from false factual assertions is one thing; protecting them from opinions (which of course, by definition, cannot be false), as in Snyder, is another matter. Should a private individual really have a right to be free from outrageous opinions, as opposed to lies, about him? Volokh thinks no, at least where that opinion also concerns a matter of public concern deserving of First Amendment protection.
Volokh also points out that declining to make a private individual/public figure distinction in IIED cases makes sense in light of the fact that many private individuals necessarily become involved in issues of public concern, whether they be lawyers, government officials, authors, criminals, witnesses, and so on. Declining to apply First Amendment protections to speech about them would defeat the First Amendment’s purpose of encouraging free and open public discourse. (Prof. Volokh’s article available here.)
But, to add another layer of complexity, Volokh is not correct in stating that defamation law punishes only false statements. As Profs. Derigan Silver and Ruth Walder point out in an upcoming paper, many states still allow recovery for true defamatory statements, so long as the statements are not of public concern, are made about a private individual, and are made with ill will or malice. (Their article available here.)
Yet more confusingly, as Silver and Walder also point out, the law remains unsettled as to whether, and if so, to what extent, First Amendment protections apply to statements of only private concern made about private individuals. Many lower courts have held such speech deserves no First Amendment protection, despite U.S. Supreme Court language to the contrary. (See Dun & Bradstreet v. Greenmoss Builders (1985) 472 U.S. 749, 759-60.) Silver and Walder argue that even these private statements deserve some form of First Amendment protection — if only a requirement that true statements be immune from liability.
The public/private distinction in First Amendment law has always been a difficult one for lawyers and the courts, and unfortunately Snyder did little to clear up the confusion.