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.