Free Speech

Eugene Volokh | 12.16.2024 8:23 AM

[1.] The First Amendment generally protects remarks on a wide range of matters, not just on politics, science, or other big subjects. As the Court held in U.S. v. Stevens (2010), "[m]ost of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' …, but it is still sheltered from Government regulation." Or, to quote another case, Connick v. Myers (1983),

[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political… We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.

[2.] Nonetheless, the Court has at times held that speech on matters of purely private concern is less protected by the First Amendment, in certain contexts, than speech on matters of public concern. The Court so held in Connick (despite the quote above) as to government employee speech cases: Government employees have some First Amendment protection from being fired for speech on matters of public concern, but "when a public employee speaks … upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."

Then, in Dun & Bradstreet v. Greenmoss Builders (1985), the Court held that false statements on matters of private concern may lead to defamation liability without the various First Amendment protections available for public-concern statements (such as the requirement that presumed and punitive damages, even in suits brought by private figures, could be recovered only with a showing of knowing or reckless falsehood). In Bartnicki v. Vopper (2001), the Court held that recipients of an illegally recorded conversation on "a matter of public concern" could broadcast it without being punished under a law that forbade such use of illegal conversations; but the opinion suggested that if the conversation was on just on private matters, no such immunity would be present. In Snyder v. Phelps (2011), the Court held that the First Amendment blocks the application of the "intentional infliction of emotional distress" tort to speech on matters of public concern, but suggested that this might not be so as to speech on matters of "private concern." Likewise, the disclosure of private facts tort (which the Court has never either validated or rejected) would allow tort liability for accurate factual disclosures on highly private matters that are "not newsworthy," which is to say are seen as being on a matter of merely private concern.

Some lower courts have taken this still further, in allowing "harassment" or "stalking" injunctions against otherwise protected speech about people—such as harsh opinions—when the defendant's speech appears to be on matters of "private concern." To be sure, some other courts have rejected that approach, I think correctly; consider, for instance, Bey v. Rasawehr (Ohio 2020) (disclosure: I argued before the court on behalf of amici in support of the speaker):

[O]ur role here is not to pass judgment on the … First Amendment value of Rasawehr's allegations. To the extent his statements involve matters of both private and public concern, we cannot discount the First Amendment protection afforded to that expression [referring to the expression on private concern -EV]. We most assuredly have no license to recognize some new category of unprotected speech based on its supposed value. Rejecting such a "free–floating test for First Amendment coverage," the United States Supreme Court declared in Stevens that the First Amendment's guarantee of free speech "does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits." "Our decisions … cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment."

I have generally criticized attempts to draw this public concern/private concern distinction, especially when it's applied to criminal or civil liability for accurate statements or opinions. But courts have indeed drawn it, in at least some areas.

[3.] There is, however, one other area in which this distinction has become especially important, and that is anti-SLAPP statutes. Those statutes provide additional protection for speech beyond what the First Amendment requires, generally by letting defendants in speech tort cases (such as libel or invasion of privacy cases) get legally insufficient cases dismissed promptly; by letting them immediately appeal trial court decisions that refuse to dismiss a case; and by letting prevailing defendants get their attorney fees paid by plaintiffs. But, generally speaking (to oversimplify slightly), those special benefits are expressly limited to speech on a "public issue" or in connection with a "public matter," which are generally seen as alternative ways of saying "a matter of public concern."

Courts are thus required, by the terms of those statutes, to decide what is speech on matters of "public concern" and what is speech on matters of purely "private concern." And, since law operates by analogy, such statutory "public concern" decisions about whether speakers are entitled to a statutory extra remedy may end up affecting constitutional "public concern" decisions about whether speakers have First Amendment protection in the first place (in the situations discussed in item 2 above). Of course, the constitutional "public concern" decisions from those item 2 situations will........

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