Penumbral Emanations, Free Speech, and Fred Phelps's Hate Speech

There's been a lot of buzz in the blogosphere about the recent multimillion dollar judgment in an IIED/defamation/invasion of privacy/etc. case on behalf of the family of a dead soldier whose funeral was disrupted by Fred Phelps's goons, a.k.a. the "God hates fags" slimebags. Most, though not all, of the buzz has been generally sympathetic to the plaintiffs' case, for obvious reasons. But I want to stake out a legal and a moral position to the contrary.

A General Theory of Penumbral Emanation.
First, permit to articulate a tentative theory of penumbral emanations. I think I may be the last person alive to believe in those things, and to think that Justice Douglas's opinion in Griswold made some sense. But that's as may be: I'm gonna run with it.

[[WARNING: this is a TOTALLY NEW IDEA for me, I dreamed it up a few hours ago, and it's entirely untested. It might be INCREDIBLY STUPID, or it might be OLD NEWS. If either of those things is the case, please alert me before I try to develop it any further. Thank you.]]

It so happens in legal practice that there are a variety of doctrines that seem to express an underlying deeper idea. So various constitutional provisions might express, say, an idea of privacy rights, or various free speech doctrines might express an idea of a general rule of free speech encompassing them. When we have that sense, there might be a parsimonious (or efficient) sentence that expresses the sense of that underlying idea. Think of it as an inductive generalization from the mass of individual rules, or as some kind of analogy to deriving utility functions from rationalizable patterns of choices.

It seems like we might fairly describe that sort of sentence as a "penumbra," or perhaps an "emanation" from the penumbra of the doctrines that it expresses. Thus, "Americans have 'freedom to associate and privacy in one's associations'" is one good example of a penumbra, which is a generalized statement of the rules of law Justice Douglas mentioned.

But once we get that kind of inductive generalization going, of course, we can make other statements as deductive conclusions from it and other premises. And this is where penumbral emanations have their bite: they give us a principled way to generalize from our discrete rules of law to underlying principles, and then use those principles to decide specific cases that aren't encompassed by our previous discrete rules.*


Penumbral Emanations and Free Speech in Private "Space"

I submit that the following penumbra efficiently expresses many of our legal doctrines. "The First Amendment provides a zone of protection against lawsuits by private individuals claiming that speakers on matters of public concern have invaded their legitimate private spheres with their messages." From what does that sentence emanate? Consider the following doctrines:

The Noerr-Pennington doctrine, immunizing government petitioning from many business torts.

The NYT v. Sullivan actual malice rule, protecting speakers on matters of public concern from lawsuits against people whose private lives and reputations became involved in the debate.

The Pruneyard doctrine, protecting speakers in many states from trespass liability or eviction for speaking on matters of public concern in many private physical spaces. (Also, Marsh v. Alabama and its progeny.)

The fair use doctrines in copyright and trademark law, protecting speakers from liability for speaking on matters of public concern (and otherwise) in private intellectual spaces.

The Legal and Moral Case Against Holding Phelps Liable for his Speech

If the penumbra I assert above is good, it seems pretty clear that the judgment against Phelps has some major legal problems. For just about every Big First-Amendment NoNo is implicated. No way is the judgment viewpoint neutral (let's face it, if people were carrying signs saying "support the war on terror," this judgment would never have happened -- and certainly wouldn't have been for so much money). The speech in question is unquestionably core political speech (assertions that the policy of the U.S. is morally wrong, and that soldiers who participate in it deserve moral condemnation and will receive divine condemnation). The usual outs to the First Amendment defenses to defamation law are not there (not only is there no actual malice, since on all evidence the defendants don't know the claims are false/aren't acting with reckless disregard, there might even be problems with the old-fashioned fact/opinion dichotomy).

All that's left is some sense that protesting a funeral is somehow particularly icky, such that we're willing to declare a "time, place, and manner" restriction. But allow me to suggest that a) Timothy Zick's argument is right-on with respect to the funeral issue, and b) our gut feelings about this are not viewpoint-neutral. Does anyone who would support a no-protest zone around a funeral really believe in their heart that people in support of the ideals for which the dead fought should be kept away? That people whose speech "respects" the dead should be kicked out? I have my suspicions to the contrary.

Now let's leave the law. Let's talk about morality and good policy. And I'll suggest that there are at least two really good reasons to be extra careful to protect this sort of speech, above and beyond the good reasons to protect all political speech.

First, the marketplace might really work here. As scum like Phelps and his goons engage in ever more offensive displays, more and more people are likely to repudiate them. They are likely to see the core of hate and irrationality that lies underneath his brand of Christianity, and they might even learn something about homophobia and other forms of bigotry that serves to make them more aware of and critical of their own and others less overtly wicked prejudices. This is really valuable for society as a whole.

Second (a claim borrowed from the lecture in the class I'm TAing, actually), it's not just a matter of speakers having a legitimate claim to physical space for their views. They might also have legitimate claims to intellectual space -- to attention for their views. Minority views -- highly, highly unpopular views -- might not ever get an audience at all unless they engage in offensive, attention-grabbing displays. Let's consider some less evil cases. Radical animal rights activists have been known to go about and throw blood on people wearing fur. Feminists sometimes bare body parts in public on various issues. Artists have gained attention by silly things like Serrano's "Piss Christ." I think we recognize, in those cases, that the offensiveness of the mode of expression is a vital part of the way the views (or artistic statements, or whatever) in question actually get out, and that they'd get out a lot less effectively without them. And we can see, where the views are less evil, that the offensiveness ought to be defended (at least part-way) for that reason. But if we're to be consistent and not to discriminate against views that we find evil, we must extend the same space to Phelps and his ilk.

It sucks, but that's the price we pay for an open society.

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* Expressed this way, of course, penumbral emanations are one angle to treat the ordinary way common law is made. A bunch of judges declare rulings in specific cases based, allegedly, on rules of law that are really full of tensions and ambiguities. Those cases then become a new body of law, and a judge at a later time reconciles a rule out of them. That rule appears in new cases and new situations. Repeat, ad infinitum.