Earlier this week, the Supreme Court issued rulings in two important cases concerning the First Amendment and the Freedom of Information Act (“FOIA”). In the emotionally-charged case of Snyder v. Phelps, et al., No. 09-751, the Court held in an 8-1 decision that the First Amendment shields funeral protesters from liability for intentional infliction of emotional distress and related tort law claims. In Federal Communications Commission v. AT&T, Inc., No. 09-1279, the Court unanimously held that FOIA does not permit the government to shield documents from disclosure in order to protect the “personal privacy” of corporations.
Court Holds That First Amendment Protects Funeral Protesters From Tort Liability
The Court issued its 8-1 ruling in Snyder v. Phelps on March 2, 2011, holding that the First Amendment shields funeral protestors from liability for various torts claims. The facts of Snyder v. Phelps revolve around the actions of the Westboro Baptist Church, a Kansas-based religious group that believes that America’s acceptance of “sinful” actions, including, most notably, homosexuality, is causing punishment of the country by God. In 2006, church members picketed the funeral of Matthew Snyder, a soldier killed while on duty in Iraq. Standing approximately 1,000 feet from the funeral location, the protesters obeyed local laws and police while displaying placards reading, among other messages, “God Hates You,” “Semper Fi Fags,” and “Thank God For Dead Soldiers.” Albert Snyder, Matthew’s father, filed suit against the church and the individual protesters in federal district court in Maryland. He was awarded $5 million for violations of state laws prohibiting intentional infliction of emotional distress, invasion of privacy, and conspiracy to commit these violations.
The Fourth Circuit overturned the award, concluding that although the protesters’ speech was “distasteful,” it involved matters of public concern and consisted only of hyperbole rather than “actual and provable facts” about the Snyder family. In doing so, that court relied on Hustler v. Falwell, in which the Supreme Court held that public speech relating to public figures is protected by the First Amendment unless it is shown to be factually false. The Supreme Court subsequently granted cert and heard argument on October 5, 2010.
The stark differences between each party’s portrayal of the relevant facts were made abundantly clear at oral argument. Snyder’s advocate characterized the funeral as an inherently private event and described Albert Snyder himself as a private figure. By contrast, the protesters, represented by Margie Phelps, a Westboro Baptist Church member and the daughter of the church’s leader, reiterated their position that Matthew Snyder’s funeral was a public event and that the speech in which the respondents engaged addressed matters of public import.
In its opinion, written by Chief Justice Roberts, the Court emphasized that speech on public issues has long been entitled to special protection under the First Amendment. In order to determine if the protesters’ speech should be considered ‘public,’ the Court examined its “content, form, and context.” The Chief Justice concluded that while the protesters’ messages “may fall short of refined social or political commentary,” they undoubtedly address public issues, such as national politics and homosexuality in the military, and were designed to reach a broad public audience. The Court went on to find that the context of the speech – its connection to a funeral – was insufficient to render it non-public, especially given that it occurred on public land and the protesters complied fully with police and local regulations. According to the Court, “any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself.” The Court went on to emphasize that public speech “cannot be restricted simply because it is upsetting or arouses contempt.” The Court also declined to extend the “captive audience” doctrine to shield Snyder from the protesters’ unsolicited comments, noting that the picketing took place at a distance from and did not interfere with the funeral service.
Justice Alito, the lone dissenter, criticized the majority for allowing “our profound national commitment to free and open debate” to act as “a license for the vicious verbal assault that occurred in this case.” In concluding that Snyder should be permitted to recover from the protesters, Justice Alito emphasized that the speech at issue went “far beyond commentary on matters of public concern” to become a specific attack against the deceased and his father, both of whom are private figures.
The Court’s decision to safeguard speech that is generally considered offensive and hurtful is certain to be hailed by proponents of free speech as much-needed constitutional protection for the messages most likely to be muffled by popular opinion. By contrast, although Chief Justice Roberts repeatedly emphasized that the actions of the Westboro Baptist Church unfortunately added to a family’s already “incalculable grief,” and the Court left open the possibility that funeral-goers may benefit from the protection of new laws that restrict similar picketing, the Court’s decision will provide little comfort to those who believe that funerals are, as Justice Alito states, “unique events at which special protection against emotional assaults is in order.”
Court Holds That Corporations Do Not Have A Personal Privacy Interest In Documents Subject To A FOIA Request
The Court issued its unanimous ruling in FCC v. AT&T on March 1, 2011, holding that FOIA does not permit the government to shield documents from disclosure in order to protect the “personal privacy” of corporations.
The FCC v. AT&T decision interprets FOIA Exemption 7(C), which protects documents from FOIA requests if their release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The case arose from an investigation conducted by the FCC’s Enforcement Bureau into AT&T’s participation in a federal program promoting increased Internet access in schools and libraries. Following the investigation, a trade association representing companies that compete with AT&T submitted a FOIA request to the Bureau seeking documents that had been turned over to it by AT&T. In granting the request over AT&T’s opposition, the FCC determined that while individuals identified in AT&T’s submissions have privacy rights under Exemption 7(C), the exemption could not apply to AT&T itself because a corporation does not possess the “personal” privacy interests to which the exemption refers. On appeal, the Third Circuit reversed the FCC’s decision, finding that the protection of Exemption 7(C) extends to corporations, and ordering the FCC to consider whether disclosure of the requested documents would result in “an unwarranted invasion of personal privacy.”
The Supreme Court unanimously reversed the Third Circuit1, holding that corporations are not entitled to “personal privacy” under FOIA. In an opinion by Chief Justice Roberts, the Court rejected AT&T’s argument that the word “personal” necessarily incorporates FOIA’s definition of the word “person,” which includes corporations. Instead, the Court construed the term according to its ordinary meaning. Because “personal” ordinarily refers to individuals, and terms such as “personal characteristics,” “personal correspondence,” and “personal tragedy” are used exclusively in relation to individuals rather than corporations or artificial entities, the Court determined that the privacy protection offered by Exemption 7(C) does not extend to corporations. Chief Justice Roberts noted that in everyday life “we often use the word ‘personal’ to mean precisely the opposite of business-related.”
The Court also explained that its refusal to embrace “personal privacy” for corporations is in accord with the distinct language of two FOIA exemptions that pre-date Exemption 7(C): Exemption 6, which protects “personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” is treated by the Court as involving an “individual’s right to privacy,” while Exemption 4, which covers “trade secrets and commercial or financial information obtained from a person,” applies to corporations.
As a result of the AT&T decision, companies cannot challenge a FOIA request by claiming that the disclosure of sensitive or embarrassing company documents submitted to the government would invade the company’s personal privacy. Instead, companies are effectively limited to challenges based on Exemption 4, which protects trade secrets. The resulting risk that FOIA may be used by corporate competitors to obtain sensitive materials will likely promote increased caution when responding to compulsory agency requests and when voluntarily disclosing information that could be used against a corporation’s interests.
However, for parties that use FOIA as an information-gathering tool, the Court’s rejection of corporate privacy in favor of greater transparency and public access to information is likely to come as a welcome relief, especially in the wake of last year’s Citizens United v. Federal Election Commission, No. 08-205, 130 S. Ct. 876 (2010), which significantly expanded the rights of corporations by lifting political campaign spending limits. To view the Jenner & Block Practice Advisory on this decision, go to http://www.jenner.com/news/pubs_item.asp?id=000015309524 .
Justice Kagan did not participate in the case.