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The Supreme Court's theory of private law.


In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court's theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or "public law in disguise."

Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court's theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy.

Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiffs agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude.


I. Competing Theories of Private Law

     A. Private Law as Government Regulation

     B. Private Law as Individual Justice

II. Snyder and the Speech Torts: A Window into the Supreme
Court's Theory of Private Law

     A. Snyder v. Phelps

     B. Doctrinal Background--First Amendment Versus
State Tort Law

     C. Intentional Infliction of Emotional Distress

III. Unpacking the Supreme Court's Theory of Private Law

     A. First Amendment Doctrine

     B. State Action

     C. Instrumentalism's Influence

       1. Ignoring Plaintiffs' Agency

       2. The Missing State Interest in Redress

       3. Compensation as Social Insurance or Pricing


IV. Normative Implications of Recapturing Private Law

     A. Tinker with Speech Torts, But Do Not Shut Them Off

     B. Take a Considered Look at State Interests and State
Level of Involvement

     C. The Identity of the Plaintiff and the Purpose of the
Litigation Matter



Snyder v. Phelps (1) was the blockbuster case of the Supreme Court's October 2010 Term, and for good reason. It had vivid facts: the father of a slain Marine sued protesters from a church whose mission was to disrupt funerals of soldiers around the country in order to spread their message of the dangers of homosexuality. (2) It featured the sexiest amendment in the Bill of Rights--the First--and perhaps the central principle in American political culture: freedom of speech. But with all of the First Amendment hype, less noticed was the underlying nature of the lawsuit itself, which had nothing to do with freedom of speech. It was the kind of lawsuit brought every day in courts around the country: a private party files a complaint, demands an answer, and alleges that the defendant has wronged him.

When the case went to trial, the particular claims that went to the jury were for intentional infliction of emotional distress and invasion of privacy: common-law torts. (3) Snyder was, fundamentally, about private law. And it wasn't just media coverage and commentators that missed this point: the Supreme Court itself failed to appreciate the private-law nature of the case.

In this Article, we approach the tension in Snyder between private law and the First Amendment through the lens of private law as individual justice. (4) When invoking the term "private law," we do not mean to suggest that certain areas of law are pre-political, or exist somehow apart from the state. We simply mean to refer to common-law subjects like torts, contract, and property (and their statutory counterparts) that involve primary rights by individuals that can be enforced by the rights-holders themselves against other individuals and entities?

We argue that the Supreme Court's theory of private law--one that follows the dominant view of private law as a species of government regulation--has distorted its decisions in several areas, including the First Amendment-tort clash in Snyder.

Much of the Court's approach to "speech torts" like defamation, invasion of privacy, and the intentional infliction of emotional distress tort at issue in Snyder can be explained by the particular circumstances in which the Court has interpreted the First Amendment in modern cases. Before New York Times Co. v. Sullivan (6) in 1964, the Supreme Court had not applied the First Amendment to state common-law actions. (7) But Sullivan was a uniquely appropriate vehicle for doing so. After all, cases in which government officials seek to suppress criticism lie at the core of virtually any theory of free speech. (8) In Sullivan, as we discuss, this is clearly what the ostensibly private lawsuit was intended to do.

From the inception of the tort-versus-First Amendment doctrine, therefore, the Court treated private law as a tool used by government to suppress and punish speech. (9) The fact that the cases decided immediately after Sullivan involved public figures surely contributed to this trend, (10) By the time the Court decided Snyder, nearly fifty years later, the assumption that tort law served to suppress speech had become so pervasive that it scarcely needed to be articulated, and even an action by a private individual who was in no sense a government official or public figure (11) was conceptualized as an attempt to suppress offensive speech rather than an action seeking private redress. (12)

To understand why the Supreme Court currently holds this view of private law as a form of state regulation, it is necessary to look beyond the development of First Amendment doctrine. A widely held view of private law that has taken hold during the course of the twentieth century has influenced the Court's approach to tort law. What follows in Part I is a brief overview of how that view came to be, as well as a sketch of a competing view.

In Part II, we briefly trace the doctrine navigating the tension between the First Amendment and tort law, showing how the Court's decisions have led to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly odd vehicle for the Court's theory of private law. The tort was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy. Seen in this context, intentional infliction and Snyder fall squarely in the wrongs-and-redress conception of private law.

Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff's agency and the state interest in redress, and in privileging a particular view of compensation. (13) In Part IV, we present some normative implications of our analysis. First, we conclude that--in a way that it did not in Snyder--the Court should find ways of protecting First Amendment values by containing the right to civil recourse rather than cutting it off altogether. Second, the Court should be more attentive to the nature of state involvement in litigation and the importance of the state's interest in providing private parties with a means of redress for private injuries. Finally, the Court should pay more attention to the identity of the plaintiff and the way that the litigation is being used. There is a difference between a government official seeking to quash criticism and a private individual seeking redress for a wrong in which he was uniquely victimized.


A. Private Law as Government Regulation

Modern thinking about private law began on January 8, 1897. Picking such dates is always arbitrary, of course, but this day's claim is at least as good as any other. On that date, Oliver Wendell Holmes, Jr. gave a lecture at Boston University Law School, later published in the nascent Harvard Law Review as "The Path of the Law." (14)

Holmes's lecture came at a moment of tremendous creativity in private law. The decades after the Civil War saw the common law transformed by two pressures, one internal and one external. The internal pressure was the final collapse of the common-law writ system. (15) As the old writs lost their grip on procedure and with it legal thought, it became necessary for judges and commentators to construct, for the first time, general bodies of doctrine governing tort and contract. This resulted in a huge burst of legal creativity as whole areas of the law were reimagined for the post-writ universe. (16)

The external pressure came from the massive economic and industrial expansion witnessed in the United States in the years after the Civil War. (17) In part this was technological. Improvements in the efficiency of steam engines dropped freight costs by sea and by rail. (18) Instant, long-distance communication became widely available via telegraph and then telephone. Industrialization, especially increased mechanization, dramatically decreased production costs, creating the first truly national and international markets for manufactured goods, especially consumer goods. (19) All of these economic developments, in turn, required private law to grapple with whole new categories of disputes, such as industrial accidents and complex corporate contracts. (20)

Holmes thus wrote at a moment when private law in the United States was in profound doctrinal and intellectual upheaval, adapting itself to a radically new environment. In this context, Holmes provided a bracing new vision of the law, one based on a hardheaded functionalism and a strong distaste for moralizing jurisprudence. (21) Rather than understanding the law in terms of some internal logic or the underlying structure of moral obligations, Holmes insisted on viewing the law purely in terms of a system of incentives. (22)

This emphasis on law's functional reality, in turn, required that one think of law in terms of social aggregates and public policies. Having banished the language of morality from the law as so much sentimentality, Holmes offered a vision in which legal outcomes were to be justified purely in terms of social utility. (23) On this point it is striking that Holmes, surely one of the most sophisticated legal thinkers of his time, turned away from the most complex body of interdisciplinary work on law at the close of the nineteenth century, namely history. "It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV," he wrote. (24) History, Holmes conceded, is necessary to expose the reality of law. However, he went on:
   When you get the dragon out of his cave on to the plain and in the
   daylight, you can count his teeth and claws, and see just what is
   his strength. But to get him out is only the first step. The next
   is either to kill him, or to tame him and make him a useful animal.
   For the rational study of the law the black-letter man may be the
   man of the present, but the man of the future is the man of
   statistics and the master of economics. (25)

In short, according to Holmes, private law should be divorced from noninstrumentalist moral philosophy, studied as a mechanism for social control through incentives and organized to advance particular social goods. (26)

The century of private-law thinking since the publication of "The Path of the Law" can be usefully understood as an attempt to tame the dragon exposed by Holmes--the unruly historical accident that is the common law--and render the dragon useful. Above all else, usefulness has been understood in terms of enlightened regulation. (27) Writing a generation after Holmes, for example, Felix Cohen, a leading legal realist, dismissed traditional legal reasoning as so much "transcendental nonsense." (28) Legal realists like Cohen were profoundly skeptical of the reasons traditionally given by commonlaw judges in support of their decisions and, like Holmes, longed for a legal discourse that would focus on the public policies at stake rather than obfuscating issues with the language of legal doctrine or individual moral responsibility. (29)

Although private-law scholarship has fractured in many directions since the time of the legal realists, by and large it has accepted the realists' basic rules of discussion. Rather than looking to the structure of legal doctrine for normative inspiration, the theorist should treat judicial rhetoric with suspicion. (30) The virtuous judge is one who refuses to hide behind legal rules and forthrightly takes policy choices and consequences into account. (31) Private law in particular should not be understood as resolving private disputes but rather as a mechanism for public regulation. (32) To be sure, there has been a range of opinions as to what constitutes desirable public regulation, but q sides have agreed that this is what private-law categories such as tort and contract are doing. (33)

On this view, tort law should be seen in terms of safety regulation and social insurance. A primary purpose of making tortfeasors liable is to police their conduct by imposing fines on certain undesirable activities. (34) The modern law-and-economics movement has pursued this basic approach with the greatest tenacity and rigor. Money damages, on this view, force actors to fully internalize the cost of their own decisions, pushing them toward optimal levels of investment in precautions and the like. (35) Even those who have not adopted the law-and-economics framework continue to see tort law in terms of shifting losses from plaintiffs to defendants in order to achieve distributionally desirable outcomes by, for example, transforming corporate actors into insurers for those that they harm. (36) In either case, the law is a way of regulating conduct so as to achieve particular social outcomes.

In short, despite the diversity of modern thinking on torts and contracts, virtually all commentators assume that private law is a form of public regulation. (37) Writing more than one thousand years ago, Tribonian opened the Institutes (38) by writing, "There are two aspects of the subject: public and private. Public law is concerned with the organization of the Roman state, while private law is about the well-being of individuals." (39) For much of Western legal history this distinction was taken as basic. (40) The century of legal thought since Holmes, however, has made the distinction invisible if not incomprehensible. (41) From Holmes's "bad man" to the complex theories of incentives promulgated by the economically inspired thinking that dominates contemporary views about torts, private law is something that the state does to its citizens. It is ultimately regulatory in precisely the same way that Occupational Safety and Health Administration (OSHA) regulations or Federal Trade Commission (FTC) rules are regulatory. (42)

B. Private Law as Individual Justice

In opposition to the instrumentalist paradigm of private law, an alternative view has arisen in the past few decades. It is a view that might be described as old-fashioned, though it prevailed before Holmesian thinking took over. (43) It holds that private law is about individual justice. The rise of this view results from several trends. The first is a reaction to the dominance of instrumentalism in legal reasoning and legal theory, particularly utilitarianism and its main variant, law and economics. (44) A second and related trend is the revival of formalism, or "neoformalism," as a legitimate and desirable way of thinking about legal reasoning. (45) A third trend is a revival of what some have called "rights talk" in the legal academy and in legal practice. (46) We briefly review each of these developments in turn.

The rise of instrumentalism occurred over time, but by the 1960s and 1970s, its dominance in legal thinking was complete. (47) It is not just that it was unfashionable to think about law in any other way. It was nearly impossible to be taken as a serious practitioner or academic when articulating a different view. (48) Such complete paradigm shifts, as Thomas Kuhn and others have explained, inevitably lead to reactions and swings in the other direction. (49)

Eventually, however, legal scholars from different vantages began to criticize instrumentalist thinking. (50) Some of this movement came from those trained in philosophy, where a similar reaction to utilitarianism was taking place. (51) Legal thinkers on the left thought that instrumentalist thinking, particularly in the hands of economists, failed to consider important factors such as fairness and social solidarity in assessing the impact of law. (52) Still others worried that if law simply collapsed into public policy, then law would lose its essential character. (53) Scholars and judges on the right thought that instrumentalist approaches to law allowed judges to sneak in their own policy preferences when deciding cases. (54)

It was this final critique that gave rise to the neoformalists. For the neoformalists, deploying concepts and using deductive reasoning was not an empty exercise. It was an ineliminable part of legal reasoning. (55) If the law was to have any predictability, and if limits on the discretion of judges and other legal decisionmakers were to be meaningful, then there had to be a check on judges simply implementing their own policy preferences. The formal mode of reasoning provided such a check.

In the 1980s and 1990s, a revival in thinking about rights occurred. This revival pushed back against prior critiques that rights were simply convenient labels to be used to mask whatever policy preferences a litigant, scholar, or judge was asserting. (56) Legal theorists such as Ronald Dworkin posited a meaningful role for rights in the context of judicial review. (57) Although "rights talk" enjoyed its most significant revival in the area of public law or constitutional rights, the idea of private-law rights emerged again as well. There has been a renewed interest in the importance of private-law rights--indeed, in the very idea that there is a coherent set of concepts called private law--led by the work of philosophers like Jules Coleman (58) and Ernest Weinrib in tort theory (59) and by scholars like Charles Fried in contract theory. (60) In both tort and contract theory, the philosophers have pushed back against the economists and argued that deploying ideas like rights, duties, fairness, and justice constitute a more accurate and better way to think about these areas of law. (61)

Much of this writing has been under the umbrella of "corrective justice." (62) For corrective-justice theorists, private law's unification of the victim and the wrongdoer has normative significance. (63) The wrongdoer has breached a duty owed to the victim rather than to society at large, and so the wrongdoer now owes amends to the victim. The practice of corrective justice, for many such theorists, helps restore the normative equilibrium among individuals in a society. (64)

We are also attracted to, and have written about, a relatively new theory of individual justice called civil recourse. (65) Civil recourse takes as central components of private law that the plaintiff both decides whether to bring the case and prosecutes the case herself. (66) Like corrective justice, civil recourse sees normative significance in the plaintiff bringing her claim directly against the defendant, as opposed to bringing a demand to the attention of the state, for example. (67) And civil recourse sees torts specifically as a law of private wrongs, not as a vehicle for loss allocation or deterrence of risky activity. (68)

The idea of private-law rights, though, is so closely associated with the Lochner doctrine that invoking such rights often invites skepticism from legal scholars. (69) Lochner v. New York, (70) of course, was a case wherein the right of freedom of contract was used to strike down New York State's regulation of bakery workers' hours. (71) Professor Cass Sunstein and others critiqued the doctrine as enshrining a notion of common-law baselines that were somehow prepolitical and natural. (72) This view was taken as gospel among legal elites, at least until recently. (73) Indeed, even in Kelo v. City of New London, (74) a case with very good facts for proponents of private-law rights, a 5-4 decision from the Supreme Court upheld the state interest in economic development against the right to private use of one's property. (75) Moreover, in an age of statutes, (76) judges may think that legitimate state interests can only be found in legislative codes when they cannot be inferred from constitutional text. Looking for such rights in the common law might seem like praying to the "brooding omnipresence in the sky." (77) Finally, private law may have a discredited pedigree in the court simply because of its association with the evils of litigiousness. (78)

This then was the intellectual backdrop when the Supreme Court considered the clash between private law and the First Amendment during the October 2010 Term in Snyder.

II. Snyder And The Speech Torts: A Window Into The Supreme Court's Theory Of Private Law

A. Snyder v. Phelps

On Friday, March 3, 2006, Lance Corporal Matthew A. Snyder of the Combat Service Support Group-1, First Marine Logistics Group, First Marine Expeditionary Force, died in Iraq's Anbar province when the Humvee in which he was riding overturned. (79) He had been in Iraq for one month and had been a Marine for three years. (80) He was twenty years old. (81) Lance Corporal Snyder had grown up in the small Maryland town of Westminster and had only recently graduated from the local high school. (82) Indeed, prior to shipping out to Iraq, the Marine Corps had sent Lance Corporal Snyder back as a recruiter to his high school. (83) His death was a major event in the small town. (84) School administrators announced it to the students and teachers at the high school, where David Brown, the assistant principal, had coached Lance Corporal Snyder as a six-year-old basketball player. (85) His mother was too grief-stricken to speak with the media, deputizing her sister--Lance Corporal Snyder's godmother--to act as her spokesperson. (86) Al Snyder, his father, said, "He was a hero, and he was the love of my life." (87) A week later, the family held a funeral for Lance Corporal Snyder at their Catholic church. (88)

In 1955, Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas. (89) The church describes itself as an "Old School (or, Primitive) Baptist Church" but is not associated with the Southern Baptist Convention or any other mainstream Baptist denomination. (90) Firmly believing in the Calvinist doctrines of total human depravity and limited atonement, the Westboro Baptist Church insists that there are many people that God despises and will refuse to save. (91) The websites run by the church provide a litany of those to whom God's grace will not extend and whom he accordingly hates:,, www.GodHates,, www.JewsKilled,,,, and (92) Much of the church's preaching focuses on homosexuality and the punishments that God has purportedly been raining down on America because of its tolerance toward homosexuals, including homosexuals in the military. (93) Since 1991, the church claims to have conducted over 47,000 "sidewalk demonstrations" in which they have held aloft signs declaring "God Hates Fags," "AIDS Cures Fags," "Thank God for Dead Soldiers," "Fag Troops," and the like. (94)

On March 10, 2006, members of the Westboro Baptist Church arrived in Westminster to protest Lance Corporal Snyder's funeral. (95) They had previously contacted the local police, who informed them that they would have to conduct their protest one thousand feet from the chapel where the funeral was to be held. (96) Protests by the church had previously attracted the attention of veterans, who formed the Patriot Guard Riders, a motorcycle gang that converges on funerals targeted by the Westboro Baptist Church and forms a cordon of leather-clad, flag waving bikers to shield family members from the protesters. (97) Bikers from up and down the East Coast converged on Lance Corporal Snyder's funeral and ringed the edge of the parish church where the funeral was held. (98) Not surprisingly, the event attracted media attention, leading the local television news broadcasts and making the front page of the Baltimore Sun. (99) The Westboro Baptist Church subsequently published an extensive manifesto on its website defending the protests at the funeral and accusing the Snyders of raising their child to support child molestation in the Catholic Church, thus earning divine retribution. (100)

The church's protests had also attracted the attention of Maryland state legislators, who introduced a law designed to protect mourning families from protestors by making it a crime to protest in close proximity to funerals. (101) This law, however, was prospective only and was thus aimed at controlling the behavior of future protestors. (102) It gave Lance Corporal Snyder's parents no means of redress against those who had turned their son's funeral into a national media event.

Maryland's common law of torts, however, did provide an avenue of redress. In 1977, the Maryland Supreme Court recognized the tort of intentional infliction of emotional distress in the case of Harris v. Jones. (103) Building on case law from other jurisdictions, the Restatement (Second) of Torts, (104) and academic commentary, the court crafted a tort designed to provide redress against "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress." (105) As examples of severe emotional distress, the court cited cases involving false allegations of child molestation and misconduct surrounding the death of a loved one. (106) On June 5, 2006, Al Snyder availed himself of this law and sued the Westboro Baptist Church protesters in federal district court in Maryland. (107)

The jury eventually awarded Al Snyder $2.9 million in compensatory damages and $8 million in punitive damages, which the district court reduced to $2.1 million. (108) Phelps appealed to the Fourth Circuit Court of Appeals, arguing that Maryland's tort of intentional infliction of emotional distress violated the Free Speech Clause of the First Amendment. (109) The Fourth Circuit agreed, and Snyder appealed to the United States Supreme Court, which granted certiorari. (110) The Court upheld the Fourth Circuit's decision. (111)

B. Doctrinal Background--First Amendment Versus State Tort Law

The majority opinion in Snyder by Chief Justice Roberts represents the culmination of a long series of cases in which the Court has considered the relationship between the First Amendment and state tort law. The Court's jurisprudence in this area begins with Sullivan, a case that grew out of the Civil Rights movement and the struggle against segregation in Alabama. (112) On March 29, 1960, the New York Times ran a paid advertisement in the form of an editorial entitled "Heed Their Rising Voices." (113) The editorial described events in Montgomery, Alabama related to the student protests against the continuing unwillingness of the state to comply with various desegregation orders. (114) It was undisputed that the advertisement as published contained various false statements about the Montgomery police department. (115) For example, it stated that police had "ringed" the university campus when, in fact, the police had only been stationed nearby, and it claimed that Dr. Martin Luther King, Jr. had been arrested seven times when, in fact, he had only been arrested four times. (116) Sullivan, one of Montgomery's elected police commissioners, sued the Times for libel and was awarded $500,000 in compensatory damages by an Alabama jury, although neither Sullivan nor the police commission was mentioned in the advertisement. (117)

The Times appealed to the Supreme Court, which ruled that for a public official to prevail in a tort action based on critical speech he must not only show that the statement is false and was made with "actual malice," but he must also prove these elements with "convincing clarity." (118) Strikingly, the Court's opinion, authored by Justice Brennan, reveals a view that sees private law as essentially indistinguishable from other forms of government regulation. This can be seen, for example, in the Court's rejection of Sullivan's state-action argument. The Court wrote:
   Although this is a civil lawsuit between private parties, the
   Alabama courts have applied a state rule of law which petitioners
   claim to impose invalid restrictions on their constitutional
   freedoms of speech and press. It matters not that that law has been
   applied in a civil action and that it is common law only, though
   supplemented by statute. (119)

Elsewhere in the opinion, the Court wrote disparagingly of attempts to draw distinctions between libel law and other forms of restrictions on speech as "mere labels of state law." (120) Hammering away at the equivalence between private law and other forms of government regulation, Justice Brennan wrote, "What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." (121)

The Constitution prohibits the suppression of political speech by the state. The Court's key point was that, like the other attempts to suppress the speech that its opinion listed, the effect of libel damages was to penalize speech critical of public officials. (122) As even critics of the Court's decision have acknowledged, it was surely correct that "[w]hether or not a newspaper can survive a succession of [civil] judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive." (123) Hence, the Court focused on "a State's power to award damages for libel," (124) seeing the purpose--or at any rate the effect--of libel law in terms of the suppression of libelous speech by the government. (125)

Given the context of Sullivan, it is unsurprising that the Court saw the libel action at issue in the case primarily in terms of the state's effort to suppress critical speech. (126) First, the case arose in the context of the largely unsuccessful attempt by the federal courts to force southern states to desegregate. (127) Second, and related, given that the connection between the advertisement and Sullivan was tenuous at best, and that criticism by outside agitators (such as those who purchased the New York Times advertisement) likely enhanced--rather than libeled--Sullivan's political reputation, it is unsurprising that the Court saw the lawsuit mainly as an effort to muffle criticism of segregationist policies. (128) There is every indication that speech suppression is exactly what the suit was intended to do. (129) Indeed, though the majority opinion was coy on this point, the concurring opinion by Justice Black, joined by Justice Douglas, was more forthright. Justice Black wrote:
   One of the acute and highly emotional issues in this country arises
   out of efforts of many people, even including some public
   officials, to continue state-commanded segregation of races in the
   public schools and other public places, despite our several holdings
   that such a state practice is forbidden by the Fourteenth Amendment.
   Montgomery is one of the localities in which widespread hostility
   to desegregation has been manifested. This hostility has sometimes
   extended itself to persons who favor desegregation, particularly to
   so-called "outside agitators," a term which can be made to fit
   papers like the Times, which is published in New York. (130)

Given this background, it is easy to understand why the justices concluded, in the words of Justice Black's concurrence, that "state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials." (131) The majority also displayed a distinct lack of trust in the Alabama courts, resolving the case on the merits before remanding it to the local court. (132) Though the majority justified this action in the name of "effective judicial administration," (133) the procedural ploy makes it clear that the majority shared the concurrence's belief that libel law was being used as a weapon to suppress critical speech. (134) Indeed, one of the striking things about the Alabama law at issue in the case is that it was not the common law of libel but rather a statutory creation that, through a series of shifted presumptions, made it very easy for public officials to obtain libel judgments for any factually inaccurate statement, even if the errors were relatively trivial." (135)

Nearly twenty-five years later, in Hustler Magazine, Inc. v. Falwell, (136) the Court extended its approach in Sullivan to cases involving the intentional infliction of emotional distress, holding that a public figure could not recover damages against the publisher of a parody that had otherwise satisfied the common-law requirements for the tort. (137) The case involved a mock advertisement published by Larry Flint's Hustler Magazine featuring a drunken and incestuous sexual encounter in an outhouse between conservative televangelist Jerry Falwell and his mother. (138) In overturning Falwell's damage award, the Court once again conceptualized damages as a form of "governmentally imposed sanctions." (139) According to the opinion by Chief Justice Rehnquist, the purpose of the tort of intentional infliction of emotional distress is to impose a "sanction in the form of damages" and "prevent[] emotional harm." (140) Hence, the state interest to be balanced against First Amendment values was its ability to control its citizens' behavior by suppressing a particular activity--offensive speech--through a system of monetary punishments.

This does not mean, however, that the Court's modern First Amendment jurisprudence has always conceptualized state tort law in terms of government regulation and the suppression of speech. In Rosenblatt v. Baer, (141) the Court considered who should be treated as a "public official" for purposes of Sullivan's "actual malice" requirements. (142) The Court entertained the possibility that the manager of a ski resort owned by a New Hampshire county was a "public official" and therefore faced the heightened requirements of New York Times. (143) Writing for the Court, however, Justice Brennan emphasized, "This conclusion does not ignore the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation." (144) In his concurring opinion, Justice Stewart was even more forceful:
   The right of a man to the protection of his own reputation from
   unjustified invasion and wrongful hurt reflects no more than our
   basic concept of the essential dignity and worth of every human
   being--a concept at the root of any decent system of ordered
   liberty. The protection of private personality, like the protection
   of life itself, is left primarily to the individual States under
   the Ninth and Tenth Amendments. But this does not mean that the
   right is entitled to any less recognition by this Court as a basic
   of our constitutional system. ... The First and Fourteenth
   Amendments have not stripped private citizens of all means of
   redress for injuries inflicted upon them by careless liars. (145)

Notice that both Justice Brennan and Justice Stewart conceptualize tort law as serving more than merely the state's interest in preventing speech damaging to reputation. They also see the law as providing an avenue of redress for wronged plaintiffs. In other words, the law is not merely a mechanism for controlling the behavior of citizens. It also serves to empower private parties to act against those who have wronged them. Indeed, Justice Stewart suggested that the availability of this agency has its roots in the idea of "ordered liberty" and may be independently protected by the Constitution. (146)

By 2011 and Snyder, however, the image of tort law as a mechanism for the regulation of speech was firmly entrenched in the Court's jurisprudence. (147) Strikingly, for an opinion declaring a well-established common-law claim unconstitutional, Chief Justice Roberts's majority opinion in Snyder does not even attempt to articulate a justification for state tort law, instead focusing the bulk of its discussion on the nature of Westboro's speech. (148) The opinion acknowledged the plaintiff's deep emotional distress, (149) but, if anything, this acknowledgment served to strengthen Phelps's First Amendment claim. (150) The acknowledgment did this by bolstering the majority opinion's conceptualization of tort law as doing little more than seeking to punish and suppress distressing speech. (151)

In his concurrence, which made clear that he favored a case-bycase approach to balancing First Amendment and tort interests, Justice Breyer conceptualized the tort of intentional infliction of emotional distress in terms of the state's effort to regulate a certain kind of behavior.
   To uphold the application of state law in these circumstances would
   punish Westboro for seeking to communicate its views on matters of
   public concern without proportionately advancing the State's
   interest in protecting its citizens against severe emotional harm.

Notice, however, that Justice Breyer's defense of the state interest remains couched in the regulatory vision of tort law that has dominated the Court's jurisprudence since Sullivan.

Only Justice Alito expressed concern, writing a dissent in which he insisted that the First Amendment does not mean that the Westboro Baptist Church "may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate." (153) The bulk of his opinion focused on the church's tactic of using funerals to garner public attention, the limited public interest of the attacks directed specifically at Snyder and his family, and the wide availability of other fora in which to share their public message. (154) But even Justice Alito conceded the majority's assumption that tort law was a form of regulation, with liability designed to deter unwanted speech. Hence, he wrote, "[t]o protect against such injury, most if not all jurisdictions permit recovery in tort for the intentional infliction of emotional distress." (155)

C. Intentional Infliction of Emotional Distress

The assumption that tort law is a form of government regulation is particularly strange in light of the tort at issue in Snyder--intentional infliction of emotional distress. Although the verdict in that case was based on an invasion of privacy claim as well, the conflict between intentional infliction of emotional distress and the First Amendment was the main issue on appeal. (156) The intentional infliction of emotional distress tort provides a clear example of a tort that was created by judges to provide redress for victims of wrongs, and in doing so, to reinforce social equality. (157) Even the most committed economists would have a hard time making the descriptive claim that intentional infliction of emotional distress was created as a means of government putting a price on certain kinds of harmful activity so as to discourage it.

The origins of the tort lie in early twentieth-century cases in which individuals suffered harm from passing trains, but without direct physical contact. (158) These cases, analyzed in depth by Professor Barbara Welke and by Professors Martha Chamallas and Jennifer Wriggins in recent books, were known as "fright" cases. (159) The word "fright" refers to the kind of injury that people thought women had suffered when trains passed too close to their homes, stopped suddenly in front of them, and the like. (160) But fright was not even considered to be an injury at the time, simply a condition. (161) And it was a condition invoked particularly by women, who were not represented among judges and juries. (162)

The early lawsuits against the railroads in these circumstances generally failed. (163) In not recognizing these injuries, the courts were saying (one might argue) that those who suffer these kinds of injuries--here, women--do not count. When courts moved later to recognize emotional distress as legitimate, they were validating the very real injuries that women had suffered, and they were affirming women's equal claim to personhood. (164) Recognizing this new tort of intentional infliction of emotional distress thus can be seen as the state putting its imprimatur on certain conduct as wrong, and on a class of plaintiffs as morally entitled to demand redress or justice.

How does this lens help us understand Snyder? It was unacceptable for Phelps to treat Snyder, a father grieving his son's loss, as simply a pawn in his larger plan to alert the country to the moral rot that Phelps believed was taking place. Providing redress for intentional infliction of emotional distress is a way that the state can underscore Snyder's equal moral worth. Snyder's claim is a chapter that fits easily in the story of a tort that has been significantly involved in the evolution of social norms on how to treat different kinds of people over the last century. But it is a poor fit for a story about the government's attempt to regulate harmful activity. Which brings us to the puzzle: why did all three opinions in Snyder assume that the underlying tort law was simply a species of government regulation? It is this question that we attempt to unpack in Part III.

III. Unpacking The Supreme Court's Theory Of Private Law

In this Part, we unpack the Supreme Court's theory of private law through the lens of Snyder. In our view, the conception of private law as government regulation comes from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism in obscuring the plaintiff's agency and the state interest in redress, while privileging a particular view of compensation. We explain what we mean by this in the proceeding discussion, and then in Part IV, we offer some preliminary thoughts on the normative implications if the Court were more attentive to the rights to redress embedded in private law.

A. First Amendment Doctrine

Generalizing about First Amendment doctrine is a dangerous task. The Supreme Court and First Amendment scholars generally agree, however, that most First Amendment cases involve assessing the First Amendment values at stake in light of the state interest in the underlying law being challenged. (165) This analysis, though, does not amount to a simple balancing of the scales. (166)

The problem in the speech-tort context, though, is that the Supreme Court's theory of private law skews the way that both the First Amendment and state tort interests are assessed. Specifically, the Supreme Court's theory reinforces two mistaken assumptions about the purpose and effect of state tort law. First, on the state-interest side, it bolsters the suspicion that an illicit purpose or motive is at work. (167) If the state is regulating, then it must be suppressing. (168) This is, after all, what "deterrence" is all about: preventing the wrongful conduct (here, speech) from happening in the first place. Second, the theory of private law as regulation is providing a presumption of "effects" on the First Amendment side of the equation: that speech will indeed be suppressed. (169)

Recall that First Amendment doctrine strives to strike a balance between the constitutional interest in speech on the one hand, and the state interests in redress or regulation on the other. In doing this, the doctrine uses the basic categories of "content-based" and "contentneutral" regulation to serve as a rough divide between suspicious and less suspicious government action. (170) This division has been criticized as a crude one, (171) but has been explained by scholars such as Professor Jed Rubenfeld and now-Justice Elena Kagan as a proxy for or means of "flushing out" suspect or illegitimate government motives, namely suppressing disfavored speech. (172)

This kind of doctrine--deploying tools for flushing out "motive"--is common in constitutional adjudication. (173) To be sure, the Supreme Court has denied, in the seminal case United States v. O'Brien, (174) that government purpose is relevant, but scholars have persuasively shown that the Court's actions in subsequent cases prove otherwise. (175) In O'Brien, the Court was concerned about "effects" on speech, another common test in constitutional adjudication. (176) But many perfectly permissible "content-neutral" regulations have the effect of lessening the amount of speech--it is when the government seeks to (again, purpose or motive is at work) suppress speech because of its content that the Court gets worried. (177)

One can argue, of course, that in a case like Snyder, this is precisely what the government is doing through its agent, the jury. It is regulating Phelps's speech because it is "outrageous," a judgment about content and a key element in the intentional infliction of emotional distress tort that is primarily at issue in Snyder. (178) But suppressing or putting a high price on speech because of its offensiveness to the majority is exactly what the First Amendment is designed to protect against. (179) So the argument goes.

What this argument misses, however, is the nature of the intentional infliction of emotional distress tort. It is a tort limited to situations in which people deliberately use speech as a weapon for inflicting severe emotional harm. (180) The "outrageousness" element is not an indicator that the tort is designed or used to go after unpopular views. The outrageousness requirement is to make sure that the speech is sufficiently egregious that it is not simply something that the majority doesn't like. (181) The strength of the constitutional suspicion here, we posit, comes from attributing the interest in speech-suppression to the state itself. The state of Maryland, not just a particular jury deputized by it, wants to protect its citizens from emotional harm, the argument goes, by suppressing speech.

Attributing this goal to the state, however, is problematic in many respects. In a case like Snyder, involving a common-law action, "the state" is at once everywhere and nowhere. It empowers plaintiffs to bring lawsuits. (182) It provides its authority to juries to decide what is acceptable and what is outrageous. And it, of course, provides a forum for the highly staged dance of demands for accountability and explanations of conduct to take place. (183) At the same time, the state has no control over the litigation. Rather, the decision to bring an action and the subsequent course of the litigation is left entirely in the hands of the victim.

The state's alleged motive or purpose in deterring speech plays an important role, standing alone, in elevating the First Amendment concerns. (184) But what the Supreme Court is also doing here is using government motive as a way to extrapolate to government effect. Attributing a suppressionist motive helps to create the assumption that the state law has a suppressionist effect. (185)

The Supreme Court's "effects" concern in a case like Snyder, involving a multimillion dollar jury verdict, is with the next speaker. If someone wanted to voice concerns on public issues in a way that could be construed as hurtful, even if meant simply to be provocative, would the speaker be chilled from undertaking such speech? The answer depends on an empirical question about the degree to which tort law--specifically "speech torts" such as defamation, privacy, and intentional infliction of emotional distress--affects people's behavior. (186) We have very little empirical evidence on this question, (187) but the relatively small number of such claims--and lack of widespread awareness of claims brought, verdicts achieved, and the like--suggests that the effect is likely to be minimal. Given the weak support for the claim that cases like Synder's suppress speech, why does the Court remain concerned?

Because, as we have already posited, the Court fears that the state is trying to suppress speech. By enabling an intentional infliction of emotional distress tort, the state's motive--so the conventional story goes, repeated in all three opinions in Snyder--was to limit (or deter) such speech. (188) If the state is setting up and maintaining an expensive apparatus--the tort system--for deterring such conduct, then the Court must assume that the game is worth the candle.

Notice, however, that this entire chain of inferences and intuitions rests on the assumption that the primary goal of state tort law is regulatory.

B. State Action

The Court's focus on tort law as a form of state regulation may also be driven by the nature of the state-action doctrine. In this Section, we briefly explain why we think this is the case. The state-action doctrine is the mechanism by which courts determine whether a particular action ought to receive constitutional scrutiny, and it has been the site of much contentiousness among courts and scholars since the beginning of the twentieth century. (189) Constitutional rights, of course, can only be invoked against action fairly attributable to the state, and so the state-action doctrine seeks to answer this question of proper attribution. (190)

Since Shelley v. Kraemer, (191) common-law actions brought by private parties can be deemed state action. (192) Shelley arose from attempts by private parties to use litigation to uphold racial segregation. Applying the state-action doctrine to this litigation and finding it to be state action allowed federal courts to use the Fourteenth Amendment to dismantle de jure racial apartheid in American housing. (193) Then, in New York Times v. Sullivan, Sullivan was an individual suing the New York Times for libel arising out of the civil rights struggle in Alabama. (194) And this was the context in which the First Amendment was first applied to suits among private parties. (195) In a sense Sullivan, decided sixteen years later, was a logical extension of Shelley.
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Title Annotation:Introduction to III. Unpacking the Supreme Court's Theory of Private Law B. State Action, p. 1110-1144
Author:Oman, Nathan B.; Solomon, Jason M.
Publication:Duke Law Journal
Date:Mar 1, 2013
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