As you’ve probably already read (see, e.g., WSJ Law Blog), yesterday the Supreme Court held in Synder v. Phelps that the First Amendment precluded Synder, father of deceased soldier Matthew Synder, from suing Fred Phelps, a hate-monger who protests funeral’s soldiers with a variety of bigoted and incoherent slogans, for intentional infliction of emotional distress.

I know what I’m supposed to write. I, like most attorneys I know, am a strong defender of the First Amendment. Free speech is essential to a free democracy. I’m suppose to cheer the opinion and pat myself on the back for being so tolerant that I want odious, malicious, and incoherent speech to have the same protections as genuine contributions to society. Most of the major newspapers already did that, as did most legal bloggers.

But I read the opinion with a sense of dread. The Supreme Court didn’t affirm the importance of free speech and didn’t strengthen protections for writers, activists, speakers, or even legitimate protests on public issues; instead, it merely gutted civil accountability for those who target private citizens for their own amusement and marketing purposes.

The Supreme Court claimed that its holding was “narrow.” Slip op., 14. It’s "narrow" in terms of the First Amendment, since it does nothing to enhance public debate and creates no new protections in favor of when and where a person may speak, but isn’t narrow in terms of destroying civil torts like intentional infliction of emotional distress. If a line is not drawn here — at deliberately targeting the grieving parents of a soldier while they buried their son — then there is no line. Malicious speech and conduct that would for hundreds of years result in liability for intentional infliction of emotional distress becomes, as Justice Alito described in his dissent, "immunized simply because it is interspersed with speech that is protected." Dissent, 9.

That’s the take-home message from the Supreme Court’s opinion, which reversed a jury trial in favor of Synder and precluded any further factual hearing: all speech, no matter how empty or malicious, no matter the subject, no matter the audience, is protected. For example, the Supreme Court found it very important that the Westboro church protesters were on a public space next to a public road:

Simply put, the church members had the right to be where they were.  Westboro alerted local authorities to its  funeral protest and fully complied with police guidance on where the picketing could be staged.  The picketing was conducted  under police supervision some 1,000 feet from the church, out of the sight of those at the church.  The protest was not unruly; there was no shouting, profanity, or violence. … 

So what? Can an ex-boyfriend stand on the sidewalk outside of his ex-girlfriend’s place of business and calmly defame her so long as he makes a trivial effort to make derogatory remarks about women in general and thus cloak himself in the veil of free speech by claiming he’s commenting on gender relations? Can a bigot stand in a park across the street from the place of worship and politely damn everyone who goes in to hell and blame them for all the ills of the world and the deaths of their loved ones because, on some shallow level, he’s expressing his religious beliefs? Can the deranged threaten others with death so long as they toss in a few words about the marginal tax rate?

I’ve noticed that most children’s athletic fields are on public land, next to public roads. Can I manufacture some media attention and troll the public with offensive, sexually-descriptive signs condemning the kids to hellfire as long as I later claim I was expressing my preference for soccer over baseball or vice versa? Apparently, if I do, there will be nothing anyone can do about it.

Truth is, as Justice Alito aptly noted, Westboro could have protested almost anywhere in America:

They could have  picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country.  They could have returned to the Maryland State House or the United States Naval  Academy, where they had been the day before.  They  could have selected any public road where pedestrians are allowed.  (There are more than 4,000,000 miles of public roads in the United States.) They could have staged their protest in a public park. 

They chose not to. They chose not to go where people would listen to their message. Instead, Westboro chose to "speak" in a manner calmly and maliciously calculated a means to ensure the ideas would be offensive and pointless; indeed, their primary defense at trial was that the people at the funeral couldn’t even hear or see them. Westboro freely admitted that they had no intention or expectation that the “audience” of their “free speech” — the grieving family members — would consider or accept their message.

That alone disqualifies them from First Amendment protection under Supreme Court precedent. The purported “audience” here — that is, the reason we grant the speech First Amendment protection at all, since we presume the speech is given to further democracy — was actually a targeted victim. There being no real audience, there is no free speech protection. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 762 (1985)(speech solely for individual’s purposes with no public audience is not protected by First Amendment).

Far from contributing to the public discourse, the sole purpose Westboro had in protesting the funeral was to manufacture outrage for publicity. And that is what the tort of intentional infliction of emotional distress is meant to cover: situations in which a person intentionally injured another through outrageous conduct. As summarized by Justice Alito:

This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.”  W. Keeton, D. Dobbs, R.  Keeton, & D. Owen, Prosser and Keeton on Law of Torts  §12, p. 61 (5th ed. 1984).  To recover, a plaintiff must show that the conduct at issue caused harm  that was truly  severe.  See Figueiredo-Torres v. Nickel, 321 Md. 642, 653,  584 A. 2d 69, 75 (1991) (“[R]ecovery  will be meted out sparingly, its balm reserved for  those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted));  Harris v.  Jones, 281 Md. 560, 571, 380 A. 2d 611, 616 (1977) (the distress must be“ ‘so severe that no reasonable man could be expected to endure it’ ” (quoting Restatement (Second) of Torts §46, Comment j (1963–1964))). 

A plaintiff must also establish  that the defendant’s conduct was  “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized  community.’ ”  Id., at  567, 380 A. 2d, at 614 (quoting Restatement (Second) of Torts §46, Comment d).

Alito was right. The majority of the Supreme Court here, however, said that it didn’t matter if Westboro admittedly had nothing to offer the public debate, and instead was merely trying to generate free publicity and laugh to themselves over a cruel joke by maliciously causing emotional distress to wholly innocent victims. In essence, the Supreme Court held: if you are not otherwise breaking the law, then you are free to say and do whatever you want, without criminal or civil responsibility for the damage you cause.

So let’s have a toast to the trolls, the liars, the stalkers, the bigots, and any other people who admittedly have nothing to offer society except malice for PR purposes: the Supreme Court doesn’t think we have a right to enforcement of court orders, only sometimes thinks we should have the right not to be entrapped and needlessly killed by police, but is darned certain that you have the right to manufacture outrage by tormenting the families of dead soldiers for publicity.