Wednesday, January 14, 2015

Funeral Speech, the Sony Hack, the Charlie Hebdo Attack, and the Fetishization of the Public/Private Distinction

by Michael Dorf

In my latest Verdict column, I probe the limits of legitimate police protest in connection with some NYPD officers' opposition to Mayor Bill de Blasio. I make two main points: (1) The police acted within their rights (if nonetheless in very bad taste and for an ignoble cause) when they turned their backs on the mayor at the memorial services of two slain officers; and (2) police non-enforcement of various laws--what I call a tacit strike--poses a serious threat to the vital democratic principle of civilian control of the police.

In the course of making point (1), I cite the Supreme Court's 2011 decision in Snyder v. Phelps, which invalidated an intentional infliction of emotional distress civil judgment against Fred Phelps and the Westboro Baptists for their offensive signs ("Thank God for dead soldiers"; "You're Going to Hell"; etc.) at the funeral of a U.S. marine who had been killed in the line of duty. Offensive speech is protected by the First Amendment, even if it causes emotional distress to the grieving. As I note in the column, however, Snyder isn't entirely analogous. Here I want to elaborate why, and in the course of doing so, I'll say a few words about private threats to free speech; thus the tie-in to the Sony Hack (probably not exactly private but not by any U.S. government) and the Charlie Hebdo attack.

As CJ Roberts explained for the majority in Snyder, although the plaintiff (the father of the fallen Marine) "could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event." It is at least possible that after Snyder, a state or locality could enforce a time, place or manner restriction at a funeral so as to keep unwanted protesters as far away from the funeral as the Westboro Baptists were in the Snyder case. To be sure, McCullen v. Coakley (the Massachusetts anti-abortion protest case decided last year) could mean that such limits would be in trouble, so long as the funeral protesters are peaceful and do not impede access. But even assuming that unwanted protesters just outside a funeral have a free speech right to use the occasion of a funeral to make their point on public property, the owners of a funeral home or private cemetery could surely use their property right to exclude protesters from the funeral ground itself, if those protesters are not welcome by the mourners.

That is not an important distinction between the Snyder case and the back-turning police at the memorial services for officers Rafael Ramos and Wenjian Liu: The officers turned their backs while they were outside, in the public streets. More importantly, of course, if the officers' speech was offensive (as I believe it was), it nevertheless was not offense directed at Ramos and Liu or their families; it was meant as a protest against the Mayor and indirectly as a show of support for Ramos and Liu. So far as I'm aware, the Ramos and Liu families did not take any steps to indicate that they would object to the protests.

Abstracting beyond the particulars of Snyder and the anti-de Blasio protests, I am hardly troubled by the fact that the private nature of the property on which funerals are held gives mourners the de facto power to enforce viewpoint-based restrictions on speech: A grieving family is within its rights to permit glowing testimonials to the departed's virtues while forbidding his enemies from taking to the pulpit to denounce him as a scoundrel.

That's not because the law permits government to enforce a principle that one should not speak ill of the dead. At least not in the U.S. anyway. In France, the satirical magazine Hara Kiri was banned when it produced a cover making light of the death of Charle de Gaulle, leading most of its contributors to leave to form a new magazine, Charlie Hebdo.

Which brings me to my main point. We (Americans committed to free speech) have little difficulty allowing grieving private parties to "censor" even political speech by other private parties at funerals, so long as the private censorial power is sufficiently narrowly circumscribed. Reasonable people can disagree about whether Snyder v. Phelps was rightly decided, without calling into question the general principle.

But if, from the American perspective, Europeans are too willing to tolerate government censorship, we Americans are--or should be--coming to realize that fetishizing state action can also undercut protection for freedom of speech (and other rights). The Charlie Hebdo killings have been widely and correctly recognized as a serious threat to freedom of speech, even though they were carried out by private parties acting illegally. Likewise, the Sony hack has been widely seen as a serious threat to free speech, whether it was carried out by the government of North Korea, its agents, or some third party).

Protecting Americans against private no less than sovereign threats to liberty was an important goal of Progressive-era politicians, but in our libertarian age, the notion that constitutional norms have "horizontal" application--i.e., that they limit private actors as well as the government--has not been embraced here, even as it informs the law of other constitutional democracies. In general, American libertarians who reject horizontalism do so because they worry that it will be used to promote egalitarian norms at the expense of libertarian ones, and certainly one sees some of that in Europe and elsewhere. But the Charlie Hebdo killings and the Sony hack illustrate that non-sovereign actors can threaten liberty as well.

19 comments:

Tantallonblog said...

But just a sec. Weren't these officers attending these funerals on paid time? They were in uniform. And more to the point, weren't they on duty? Surely there can't be a freedom of expression exception for officers who are acting in the course of their legal responsibilities?

Shag from Brookline said...

Does Mike's:

"In general, American libertarians who reject horizontalism do so because they worry that it will be used to promote egalitarian norms at the expense of libertarian ones, ...."

that American libertarians are stand-up elitists?

Hashim said...

The 1A doesn't need to be extended to private parties to reach acts like murder and hacking that are already proscribed by speech-neutral laws.

Instead, extending the 1A to reach private parties would only do any work where such parties were otherwise acting lawfully under speech-neutral laws, but in a way that "abridged" the speech of others: e.g., refusing to allow speakers to use their property; refusing to hire ideological opponents; etc.

And, in that context, I'm struggling to think of a scenario where liberty would be enhanced. All such scenarios, it seems to me, involve what you describe as "egalitarianism," and what i'd describe as subordinating one person's liberty to enhance another's liberty. Doing so, it seems to me, would undermine 1A values, not further them.

Joe said...

The Bill of Rights are not just in place to guard against governmental power. They generally reflect things we honor as a whole.

As a whole, e.g., free speech and respecting the rights of others to have a different sort of religion is a good thing. The rules are somewhat different but the overall ideals hold. Even little kids, e.g., talk about "fairness," mini due process promoters.

Of course, Prof. Dorf is aware of this in academia. Private colleges are not bound by the 1A but the value of academic freedom doesn't suddenly disappear.

Michael C. Dorf said...

In response to Tantallonblog:
As I explain in the linked Verdict column, being in uniform means that the officers are covered by the employee speech doctrine, which permits some additional constraints on public employees beyond those that can be imposed on other persons acting purely in a private capacity--but I don't think that as applied here the city should be permitted to suppress this particular form of employee speech (much as I disagree with both its message and the method of expression).

In response to Hash:

My main point is that one can be a good libertarian and still support constraints on liberty in order to enhance overall liberty. Constraining the liberty to murder enhances everyone's overall liberty.

For an example of a constraint directed at speech, consider copyright law, which has (chiefly) horizontal application. It constrains the speech of some (the copiers) in order to protect the liberty of all to read (or otherwise enjoy) the speech (or other creative output) of those actors who, as a result of their ability to capture the economic value of their creativity, will now create.

Now I suppose you might say that copyright law doesn't "count" in some way because it is an express power of Congress, but that seems to me irrelevant because, for one thing, the First Amendment could be thought to limit an Art. I, sec. 8 power (cf. Seminole Tribe on the significance of later-enacted amendments), and for another thing, my point is not about constitutional doctrine as such but about how a certain kind of enlightened libertarianism ought to be hospitable to some restraints on liberty in the interests of greater liberty overall.

Another reply might be that copyright law does not take a constitutional norm and apply it to private actors; it creates a sub-constitutional norm. But this seems only to strengthen my point. If we are willing to permit sub-constitutional norms to infringe liberty, we ought also to permit (when appropriate) constitutional norms to do so.

David Ricardo said...

Per Mr. Dorf's last comment, what is the constitutional basis for laws like those that prohibit verbal sexual harassment or law prohibiting a hostile workplace? Does the constitution indeed recognize that some speech may inflict harm and thus laws against harmful speech are constitutional notwithstanding 1A?

Michael C. Dorf said...

David Ricardo's question merits a longer response but I'll just say that in RAV v City of St Paul, the SCOTUS says that laws forbidding sex discrimination are speech neutral even if in particular instances the discrimination is accomplished verbally. This reasoning is questionable. Eugene Volokh is the most prominent critic of sexual harassment laws and the like on free speech grounds.

García said...

A bit off topic.

Prof. Dorf's comment (on the relationship between the First Amendment and Art. I, sec. 8) has reminded me of an issue that I find curious about U.S. constitutional law: the apparent lack of a dogmatic distinction bewteen the 'organic' and the 'substantive' parts of the U.S. Constitution, which is common in Europe. This -it seems to me- sometimes leads American lawyers to conflate both dimensions of the constitutional text, such as in NFIB v Sebelius, where the CJ suggested that the Commerce Clause somehow intended to protect freedom by not including the possibility of regulating the absence of economic activity.

The organic/substantive distinction perhaps makes no sense when interpreting a text that was originally enacted without a set of substantive principles, but I find it notable.

Best,

García

Joe said...

The details are complicated but this question is easier:

"Does the constitution indeed recognize that some speech may inflict harm and thus laws against harmful speech are constitutional notwithstanding 1A?"

Yes. "Some speech" (perjury etc.) has certain "harms" that can lead to limits, civil or criminal.

Prof. Volokh points to the vagueness and overbreadth etc. of harassment laws though this doesn't mean harassment would never be actionable if verbal. His posts at his blog on the point were annoying at times since he and others refused to address the point specifically.

So, a lot on how the laws could be vague. But, harassment means something & there are laws against things like calling people up over and over again, even if mere speech is involved.

There is a distance from saying singling out certain types of harassment via vague laws that burden much speech (so posters in one's cubicle will be banned) and saying no harassment of a verbal nature can in any way be open to even civil limits.

James Longfellow said...

"The Charlie Hebdo killings have been widely and correctly recognized as a serious threat to freedom of speech, even though they were carried out by private parties acting illegally."

This is an excellent example of a misleading half-truth. It is true but by no means the whole truth. The Charlie Hebdo killings have been widely and correctly recognized as a serious threat not only to speech but also to the immigration policies in Europe (see the comments by both the LePens). It has called into serious question the ability of the French security services to know what is going on in their own country. It's true enough that right now the "freedom of speech" narrative is becoming privileged but that is by no means the only possible narrative.

One way that the Sony hack and the Hebdo hack--to the extent that they are private acts--differ from state action is that is no evidence that these attacks on free speech are systematic or coordinated. There is significant difference between self-censorship based on the bully next door and self-censorship based upon the state's police power. One reason to support private/public distinction is because there is a significant difference in the applied power of the actors. The two threats are not of equal magnitude, not even, in my view, remotely close.

Hashim said...

I of course don't disagree that some govt restrictions on private liberty enhance private liberty overall--see, e.g., murder.

But I disagree where the private liberty being enhanced through govt restriction is *speech* -- in those circumstances, there's a pretty serious risk that the govt isn't enhancing private liberty overall, but rather is subordinating disfavored speech or prioritizing favored speech. (Employees vs. employers; property owners vs. passers-by; etc.)

Copyright law seems to me distinguishable for a different reason: it's really just creating a property right in a certain good, and then preventing other private parties from expropriating that property. To be sure, it's a property right where the good at issue happens to be speech, but that seems largely besides the point; the Govt creates property rights against copying all the time. See, e.g., patents.

Now, I suppose you could try to make the same move for other situations. Employees have a "property" right not to be discriminated against for their speech, and passers-by have a "property" right to use someone's mall to host a protest rally. But that's fairly nonsensical -- it seems pretty obvious that instead these laws are restricting third-party property rights in order to favor the speech of others. And the Govt is doing it precisely because it thinks that the speakers' rights are more important than the property owners' right not to have such speech occur on their property. Seems pretty problematic to me from a 1A perspective, because the Govt shouldn't be making speech-based value judgments about whose speech/non-speech should trump.

Unknown said...

Regarding the Verdict column, I have an Acquaintance Who likes to talk tough in support of the police and military. I showed Him the article and He basically called the article a bunch of hooey, a view I do NOT share. I invited Him to take His objections up with You directly, Professor, but if a fortune I once received from a Chinese restaurant ("big winds come from empty caves") is any indication, He will not bother bringing up the objections. I say this because it takes a brave Person (such as Professor Dorf) to speak truth to power (in this case, any Officer possibly reading the article) and I greatly admire You for doing so.

Emma O'Connell said...

It has called into serious question the ability of the French security services to know what is going on in their own country. It's true enough that right now the "freedom of speech" narrative is becoming privileged but that is by no means the only possible narrative.makeup brush set
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