This morning, the Supreme Court denied cert in the SHAC case, involving a group of activists associated with Stop Huntingdon Animal Cruelty. As we highlighted in our amicus brief, the government was unable to find the people who freed beagles and other animals from Huntingdon Life Science and committed other acts of civil disobedience against animal testing, so instead they went after the people involved in SHAC’s website. The individuals were not even accused of engaging in any acts of civil disobedience, but were convicted and sentenced to jail for web postings that expressed ideological support for such actions. The Supreme Court refused to hear the case.
That this decision comes just a few days after Westboro Baptist Church’s victory in the Supreme Court is cruel irony. There is no need to rehash that high-profile case, but what is less discussed is the technical significance of the claim Mr. Snyder brought against them. Intentional inflection of emotional distress requires proof that the defendant engaged in extreme and outrageous activity that was intended to and did cause severe emotional harm to the plaintiff (or was reckless about the likelihood that it would cause severe emotional harm). A basic tenant of appellate law is that jury findings of fact are not to be disturbed absent extraordinary conditions, which no one argued were present here. So if that is taken seriously, it would be easy enough to draw the lines valuing free speech but not where one intentionally causes severe harm. The Court’s assumption that the speech at issue was of “public concern” and not personally directed at the Snyder family seems inconsistent with the jury-found facts.
So to sum up these and other relevant cases, according to the Supreme Court:
“God Hates Fags,” “Your Son Is Burning In Hell,” and similar statements speak to matters of public concern and are protected speech. Someone forced to listen to such statements has no recourse, even if a jury finds that the statements were intended to and did cause severe emotional harm. Snyder v. Phelps. But:
Posting facts on the internet available elsewhere and expressing ideological support for the actions of others who engage in civil disobedience can lead to jail time. Kjonaas v. USA (3d Cir., cert. denied).
Peacefully holding a sign reading “Bong Hits 4 Jesus” at a public rally on the street is “disruptive” — not because it causes actual disruption, but because it is disruptive to the state’s indoctrination efforts — and the state may punish a student for it. Morse v. Frederick, 551 U.S. 393 (2007)
A St Patrick’s Day parade is private. The organizers can keep out gay groups if they want. The state’s public accommodations laws cannot require otherwise. Hurley v. Irish American GLB Group of Boston, 515 U.S. 557 (1995).
But a private institution’s nondiscrimination policy is not speech. Private law school may not keep out bigots. The government can force them to violate their nondiscrimination policy. Rumsfeld v. FAIR, 547 U.S. 47 (2006).
Conversations with a terrorist group that seek to find ways to bring their grievances to light through legal means rather than terrorism are not speech; they constitute the felony “material support to a terrorist organization.” Holder v. Humanitarian Law Project.
And of course, money is speech. The government can tell you what hours you can use a park for rallies and how loud your amplifier can be, but not how much money you can spend on a political ad. Citizens United v. FEC, 130 S.Ct. 876 (2010).
