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View Diary: Alito's Dissent: What Republicans REALLY Want (23 comments)

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  •  IIED (2+ / 0-)
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    zenbassoon, Akran

    Alito wrote:

    It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton, [1897] 2 Q. B. 57); see also Restatement (Second) of Torts §46, illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.

    So the quote you've quoted from him wasn't new in case law.

    The SCOTUS at large held that it was protected because:

    (1) The majority of the message was not personal;
    (2) The WBC had no "grudge" causing them to "single out" Matthew Snyder's family, and;
    (3) Because the WBC was on a public street

    Alito's dissent picks apart their reasons. In particular, the WBC posted a nasty-gram to the Snyder's prior to the funeral that addressed them directly. Thus while their opinions about sin and judgment may be protected speech, the combination of the personal attack on a private person, the venue, and their specific picking on the parents in their posting constituted a private message. Alito didn't deny much of it was public, just that

    First—and most important—the Court finds that “the
    overall thrust and dominant theme of [their] demonstra- tion spoke to” broad public issues. Ante, at 8. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central impor- tance. But in any event, I fail to see why actionable speech should be immunized simply because it is inter- spersed with speech that is protected. The First Amend- ment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respon- dents’ attack on Matthew Snyder and his family should be treated differently.

    I agree with Alito here, merely because it is obvious that the typical hate group gets no media coverage, and that WBC only gets coverage specifically because it is so outrageously cruel to people that their shocking incivility is their story. No one gives a damn about their message... we're in awe of the delivery. It's IIED on display. They're trolls. The only "story" is how cruel they are being to Snyder's family members.

    So the question simply becomes: if you intentionally inflict as much distress as possible by making some generic, protected speech as personal and as cruel as you possible can, does the personal attack, cruelly inflicted in an inescapable venue, constitute protected speech merely because you are using the cruelty as a level for publicity?

    As Alito wrote:

    Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

    Ultimately, it seems like the larger court's opinion here is that it is, indeed, okay to be a gigantic asshole and intentionally inflict distress on people, as long as you're doing it for publicity. And there's no question as to IIED; basically the entire discussion at the SCOTUS level stipulated that there was IIED; the question was simply whether the First Amendment could be used as a shield against liability.

    Anyhow, my point is: Alito isn't introducing a "new" concept that intentionally inflicted distress via speech can be held liable, and that is still true even after this ruling; the court just held that the combination of the nature of the speech (interest to the public), the so-called lack of personal nature (I totally disagree here; it could have been impersonal, but based on the facts, they went out of their way to make it personal), and the location (public street) combined to afford this speech protection under the First Amendment.

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