Could funeral protesters’ case give colleges greater authority over “offensive” speech?

On the surface, it does not appear that college students would have much at stake in a court case arising out of the attention-grabbing antics of Kansas clergyman Fred Phelps, whose repugnant anti-gay protests outside the funerals of American soldiers got him sued by the family of a slain Marine.

But a coalition of free-speech advocates is telling the U.S. Supreme Court that a ruling against Phelps — whose First Amendment case will be argued this fall — is also a ruling against the ability of college students to voice controversial views that upset some listeners.

The Foundation for Individual Rights in Education, Inc., and a coalition of prominent First Amendment attorneys filed a brief Wednesday in the case of Snyder v. Phelps, urging the Supreme Court to uphold a lower court’s First Amendment ruling in favor of the funeral protesters. (In September 2009, a three-judge panel of the Fourth U.S. Circuit Court of Appeals threw out a $5 million damages award against the Phelps family and their church.)

Free-speech advocates have held their collective noses at the ickiness of Phelps’ tactics and have urged the Court as a matter of principle not to create a First Amendment exception for “outrageous” speech that could be abused to censor messages with more substantive ideas than Phelps’. The FIRE brief focuses on the likely spillover effect on campuses if the justices reverse the Fourth Circuit and give government officials a license to punish or prevent speech merely because it may be “distressing.”

The brief, co-authored by UCLA law professor Eugene Volokh, reminds the Court of the many incursions that colleges already attempt to make into the First Amendment rights of their students on the grounds of maintaining “civility,” including canceling edgy theatre productions and intimidating student editors. Conditions would only worsen, say the authors, if college administrators were emboldened by a ruling against Phelps.

As a secondary point, the brief also urges the Court to reject the Snyder attorneys’ invitation to recognize a less-demanding standard for bringing an emotional-distress claim when the person targeted by the speech is a “private” rather than “public” figure. (The Fourth Circuit analyzed the Snyders’ claims using the First Amendment standard that applies in a defamation case, and decided that Phelps’ speech was not actionable because it could not be understood to state or imply false facts about the Snyders’ son. The Snyder attorneys’ brief urges the Supreme Court to allow a non-public figure to pursue a claim for emotional distress in circumstances when the First Amendment would foreclose a suit by a high-profile person active in public issues.)

As the brief explains, the line between a private and a public figure — while a difficult enough distinction to draw in everyday life — becomes even more elusive within the confines of campus. A professor or a student activist might not be prominent enough in the world at large to be regarded as a “public figure,” but that person may have a consequential role in campus affairs that is fair game for even very harsh editorial criticism. Such criticism, the authors conclude, must enjoy a wide berth of protection to foster open dialogue about matters of public concern, even if its target will be distressed.