My libertarian message: "If you need a club, a car, or a torch to deliver your message, it's not free speech."

As I have been reflecting on the Charlottesville tragedy, I can't help thinking that the Supreme Court of United States encouraged that result with its decision in Snyder v. Phelps. The Phelps family are the "God hates fags" cultists. The Snyder family is a national treasure -- a gold star family. Not surprisingly, the Phelps family has trouble getting anyone to pay attention to their hate. So they hit upon an idea -- let's "protest" the funerals of fallen war heroes. Then people can't ignore us. And so they did, and the Snyder family took them to court under the long-accepted tort doctrine of intentional infliction of emotional distress ("IIED"). Under this cause of action, a defendant who intentionally or recklessly inflicts severe emotional distress on a victim through extreme (very unusual) and outrageous (very bad) conduct can be held legally responsible for the severe emotional distress that they intentionally inflict. Not surprisingly, the Snyders won their civil suit, and the Phelps family appealed all the way to the Supreme Court claiming that the First Amendment protected their funeral "protest" stunt. The Supreme Court (except for Justice Alito) agreed with the Phelps family.

And so the law of the land is that staged stunts that get out a message by intentionally hurting other people are constitutionally protected free speech. I think that's nonsense. 

I'm not suggesting that the government should be allowed to sanction mere hateful words. It's important to remember that the Snyder family did not sue the Phelps family because of the hatefulness of their message. I'm attuned to the danger of attempts to regulate so-called "hate speech," but the Phelps family was not being held responsible for their message. The offensiveness of the message isn't the point. It's the mode of delivery. The Phelps family is perfectly free to deliver precisely the same message in a variety of ways (and they do). What they should not be allowed to do is intentionally inflict severe emotional distress on other people to get attention for their message. The trial court found by a preponderance of evidence that the Phelps family did more than spew hate. 1) They targeted mourning family members at the funeral of their young son. 2) They intended to cause severe emotional distress. 3) They successfully caused severe (probably clinical, akin to a physical injury) emotional distress. 

I think the First Amendment "absolutely" protects messages, but not delivery methods (at least not delivery methods beyond normal speech and press). This brings me back to Charlottesville. I believe the road to the Charlottesville tragedy started with the flag burning case. Justice Scalia was one of my judicial heroes, but I think he went off the rails constitutionally with the flag burning case. I think flag burning should be protected, but it just isn't speech. Once we start providing constitutional protection for expressive stunts like burning a flag, why not protect other stunts like burning a cross, or protesting a funeral, or marching around carrying torches, or plowing a car into a crowd?

Many Justice Scalia fans proclaim themselves "First Amendment absolutists." But is that really possible? Let's see. If I am a rabid statist, do I have an absolute First Amendment right to get my message out by carving "down with liberty" onto the side of the pickup truck belonging to the most libertarian/small government person on campus? Those are words I put on the truck, so they're absolutely protected, right? (Remember this has nothing to do with the offensiveness of the message.) Consider another example. Let's assume that you have six kids, and I think your population explosion is over-burdening the planet, so I go to your four-year-old's preschool and walk up to her on the playground and follow her around screaming "I wish your dad knew about birth control." Those are words, so they're absolutely protected, right? If I do that, and you try to sue me in a civil suit, that's prohibited government regulation, right? I speak as a fool. Clearly the right to express yourself is not absolute. Some speech delivery methods, such as a scrawled message on a pickup or screaming in a toddler's face, might be actionable as a trespass to chattels or an IIED, the First Amendment notwithstanding. We can have a discussion about whether what the Phelps family did ought to constitute IIED. I think it should, and the trial court agreed with me. I have no problem giving a plaintiff a cause of action in circumstances like Phelps or like the harassing of the child scenario I suggested. So the Phelps message may have been constitutionally protected, but the method of delivery should not have been. Getting in the face of a two-year-old and screaming threats would not be merely "hateful words," it would be verbal violence.  I'd call what the Phelps family did a form of "verbal violence" targeting vulnerable victims, not utterly unlike screaming in the face of a small child.

It's a pretty subtle distinction I'm making. People can say what they want, but they still should be responsible for how they deliver the message. If I'm a statist and want to get out my big government message by picketing the biggest libertarian on campus, would the First Amendment protect my right to stand outside his car holding up a sign that said "Down with liberty"? Would the First Amendment protect my right to scratch "Down with liberty" into the paint of his truck? Is there a difference? I think the difference is the mode of delivery. The first way of getting my message out isn't a tort. The government shouldn't prevent me from doing that. The second method is a tort (trespass to chattels). I think the First Amendment doesn't privilege the tort. The Snyder v. Phelps court disagreed with me, but I think there is a difference between protecting speech that is otherwise tortious (like burning a cross in front of someone's house, which I'm not even sure constitutes speech, although I think Scalia would have thought so) and pure speech that does not constitute a tort. 

This was not a case of the government targeting the speech of the Phelps family with a regulation made for them. The tort of intentional infliction of emotional distress existed long before the Phelps family started inflicting emotional distress for attention. The tort wasn't created for them, but it fits. And it was crafted taking First Amendment values into consideration, hence the limitations on the cause of action. 

The Phelps family argued that they had a permit and complied with its terms, but the permit didn't entitle them to do whatever they wanted in the permitted space. They couldn't set off explosives or lob rocks at bystanders. They couldn't amplify their voices so as to damage the hearing of those around them. Existing tort law provided that if they targeted vulnerable people and caused clinical emotional injury, they would be liable. I can't imagine that their permit purported to wipe out existing tort law. 

I think much of the support of the Phelps case comes from our mothers. My mother taught me "sticks and stones may break my bones, but words will never hurt me." With all due respect to my mom, and probably yours, they were wrong. Words frequently do hurt. That's why there's a long rabbinic tradition grounded in Biblical principle prohibiting lashon hara. I'm not saying that all harmful speech should be actionable, but all American jurisdictions have determined that when someone uses extreme and outrageous methods to deliver speech as a weapon to inflict severe emotional harm, the wielder of the damaging words is responsible for the harm the words do. In Snyder v. Phelps, a civil court determined that the Phelps family's conduct (including their speech but not limited to their speech) was extreme, outrageous, calculated to inflict severe emotional distress and did, in fact, inflict such distress. 

The Phelps decision was an authoritarian decision. I'm a political libertarian, but most of my political friends and allies are conservatives. They sometimes wonder aloud how a libertarian like me can advocate government regulation of speech. Conservatives always get libertarianism wrong. Libertarianism doesn't mean everyone does what they want without consequence. It means everyone is responsible for the consequences of their own voluntary actions. Some libertarians feel torn between the private right of victims to be free from intentional inflictions of emotional distress and the right of victimizers to do and say whatever they want. I think this conflict stems from a misunderstanding of libertarianism. Libertarianism is based in personal responsibility. Everyone bears the consequences of their own choices, and they're not allowed to impose the costs of those choices on others without recourse. The version of libertarianism that says everyone gets to do what they want without regard to the consequences isn't libertarianism at all. I would call that libertine, not libertarian. 

Eight authoritarians on the Supreme Court insisted that their political values trumped the Snyders' private right to redress for severe emotional harm intentionally inflicted on them by the Phelps cult. Providing an outlet for people to get redress against wrongdoers isn't big government, it's a minimum role for government. Government telling me I have to put up with extreme and outrageous verbal abuse at my son's funeral or that I have to tolerate false and defamatory savaging of my reputation because of the First Amendment, that's big government. 

None of this suggests that any of the "speech" at Charlottesville last year was actionable. It probably wasn't. But I think the events of that tragic weekend should cause us to reconsider what I see as the Court's mistake in Snyder v. Phelps. Speech is protected. Delivery methods should not be.