William & Mary Bill of Rights Journal
In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First Amendment against state common law. Sullivan, on the one hand, was a classical common law decision, taking the internal point of view with respect to state common law. Snyder, on the other, was only concerned with the existence of protected speech, an issue for which state common law was irrelevant. This Article contends that Snyder’s absolutism has negative systemic consequences for judicial federalism: courts are unnecessarily prevented from judging certain conduct right or wrong under the local standards of state tort law, even if the First Amendment ultimately immunizes a defendant from liability. Sullivan’s methodology is better than Snyder’s because it embraced cooperative judicial federalism. Sullivan has underwritten fifty years of productive state-federal judicial dialogue; in just seven years, Snyder has censored every significant opportunity for cross-systemic judicial conversation.