I share Eugene's hope that the Court does not deform current doctrine.
Although I am not at all confident that it will do so, the Court
could reverse the fourth circuit on narrow grounds. The Epic included
what were alleged to be provably false statements of fact ("Albert and
Julie . . . taught Matthew . . .to divorce, and to commit adultery.").
Writing narrowly, the Court could disagree with the panel's
conclusion that those false statements of fact were obvious rhetorical
hyperbole, and hold that they therefore lack any constitutional
protection.
Whether particular false statements of fact are sufficient to support
a defamation claim (the district court held they were not) is a
different question from whether they are constitutionally protected
speech. Accordingly the Court could hold consistent with current
doctrine that the state is free to provide tort remedies for injurious
false statements of fact, and that whether it chooses to characterize
the remedy it provides as defamation, IIED, or intrusion into
seclusion is of no moment since the speech is constitutionally
unprotected.
Having established that the judgment rests in part on constitutionally
unprotected speech, the Court could then turn to jury instruction 21,
agree with the panel that the giving of that instruction was
reversible error, noting that it fails to distinguish between
permissible (false statements) and impermissible (outrageously
offensive statements) grounds for liability and perhaps that it
delegates to a jury determinations of matters reserved to the court,
and that therefore the giving of that instruction requires a new trial
focused on the alleged false statements of fact.
I would prefer to see the Court affirm the panel, but given that there
is no obvious circuit conflict to resolve, it's tempting to speculate
that it took the case to reverse. But there are a range of ways to
reverse, and, Citizens United notwithstanding, perhaps the Court will
choose to write narrowly.
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
Well, the premise of the constitutionality of libel law -- whether
under an actual malice standard, a negligence standard, or a
(possibly permissible) strict liability standard -- is that false
statements of fact lack constitutional value; the mens rea standard
is there chiefly to make sure that libel law doesn't unduly deter
true statements of fact.
Here, we don't have false statements of fact. That the emotional
distress tort requires recklessness or purpose as to another matter
(the tendency of the speech to create severe emotional distress)
doesn't validate it by analogy to libel law -- libel law asks not
about mental state in the abstract, but about the mental state as to
the *false statement of fact*.
Again, if one wants to argue for an exception for speech, whether
opinion, true statement, or false statement, that inflicts severe
emotional distress -- or just does so near a funeral, or just does
so with regard to a recently dead person, or what have you -- that's
fine, and the question would then be what the exact boundaries of
the exception are, and how the exception can be defended. But libel
law does not offer a helpful analogy.
Eugene
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, March 10, 2010 12:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.
I think Eugene has oversimplified defamation law here. We hold
some tortfeasors
to an actual malice standard while others are held to more lax
standard. So while
false statements of fact are a constant minimum element of proof
(because they
lack value AND are very likely to cause harm to reputation) the
tort liability is
determined according to the role played by the speaker and the role
played by the
recipient of the message. And in private person victim cases a more onerous
standard than actual malice can be applied to the speaker.
In these cases the tort must be intentional. So you have already
limited the
impact if the tort considerably. I think when one adds that
funerals and death are
instances where the victim is vulnerable and deserving of
protection the argument
for liability in these cases is strong
Marci
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