An American Expat in Southeast Asia

The Lynching and the Trial of Ann Coulter

Petitioner Ann Coulter, is a nationally known author who has been active as a author and commentator and political pundit on politics and public affairs. Respondent John Edwards, a nationally known politician and Democrat presidential candidate, sued petitioner Ann Coulter, to recover damages for "hateful speech", slander, and intentional infliction of emotional distress. The lynch mob directed a verdict against respondent on the "hateful speech" claim, and submitted the other two claims to a jury. The lynch mob found for petitioners on the "hateful homophobic speech" claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments of the United States Constitution.

On or about 2 March 2007 at the CPAC conference in Washington D.C. an insinuation was made by way of an utterance by Coulter that John Edwards is a "faggot". This lampoon was modeled after John Edwards alleged effeminate, limp-wristed and cuckolded behavior. Although Coulter has clearly stated that "It's a schoolyard taunt meaning 'wuss,' and unless you're telling me that John Edwards is gay, it was not applied to a gay person.", the allegation remains that the insinuation played on the sexual double entendre of the word "faggot" and for this, accused by the mob of being hateful and mean-spirited, Coulter clearly chose to portray the respondent in an unfavourable light. Coulter must be tarred and feathered and then burned at the stake. The insinuation portrays the respondent as an effeminate man and/or a homosexual, by insinuating and/or suggesting that respondent is a "faggot".

Soon after details of the utterance and insinuation became available to the public, respondent brought this diversity action to a politcally correct lynch mob, against Ann Coulter. Respondent stated in his complaint that the insinuation uttered by Ann Coulter entitled him to recover damages for libel, hate-speech, and intentional infliction of emotional distress. The case proceeded to trial. Before the close of the evidence, the lynch mob outside delivered their own verdict for petitioners on the hateful homophobic speech claim. The jury however found against respondent on the libel claim, specifically finding that the insinuation could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." Petitioners' motion for judgment notwithstanding the verdict was denied.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. Edwards v. Coulter, BR549 (2007). The court rejected petitioners' argument that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), must be met before respondent can recover for emotional distress. The court agreed that because respondent is concededly a public figure, petitioners are "entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in [respondent's] claim for libel." But this does not mean that a literal application of the actual malice rule is appropriate in the context of an emotional distress claim. In the court's view, the New York Times decision emphasized the constitutional importance not of the falsity of the statement or the defendant's disregard for the truth, but of the heightened level of culpability embodied in the requirement of "knowing . . . or reckless" conduct. Here, the New York [485 U.S. 46, 50] Times standard is satisfied by the state-law requirement, and the jury's finding, that the defendants have acted intentionally or recklessly. The Court of Appeals then went on to reject the contention that because the jury found that the insinuation did not describe actual facts about respondent, the insinuation was an opinion that is protected by the First Amendment. As the court put it, this was "irrelevant," as the issue is "whether [the insinuation's] utterance was sufficiently outrageous to constitute intentional infliction of emotional distress." Petitioners then filed a petition for rehearing en banc, but this was denied by a divided court. Given the importance of the constitutional issues involved, we granted certiorari.

This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress or alleged hate-speech. We must decide whether a public figure may recover damages for emotional harm caused by the utterance of an insinuation offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "The freedom to speak one's mind is not only an aspect of individual liberty - and thus a good unto itself - but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503 -504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). As Justice Holmes wrote, "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).

The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result). Justice Frankfurter put it succinctly in Baumgartner v. United States, 322 U.S. 665, 673 -674 (1944), when he said that "one of the prerogatives of American citizenship is the right to criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks," New York Times, supra, at 270. "The candidate who vaunts his spotless record and sterling integrity cannot convincingly cry `Foul!' when an opponent or an industrious reporter attempts [485 U.S. 46, 52] to demonstrate the contrary." Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971).

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 279-280. False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective. See Gertz, 418 U.S., at 340 , 344, n. 9. But even though falsehoods have little value in and of themselves, they are "nevertheless inevitable in free debate," id., at 340, and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted "chilling" effect on speech relating to public figures that does have constitutional value. "Freedoms of expression require "breathing space.'" Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772 (1986) (quoting New York Times, supra, at 272). This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability.

Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive insinuation. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (ruling that the "actual malice" standard does not apply to the tort of appropriation of a right of publicity). In respondent's view, and in the view of the [485 U.S. 46, 53] Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment:

"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Id., at 73.

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

Were we to hold otherwise, there can be little doubt that political cartoonists and pundits would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." Webster's New Unabridged Twentieth [485 U.S. 46, 54] Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events - an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words:

"The political cartoon or lampoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters." Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill 56, 57 (Nov. 1962).

Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date, who was associated for many years during the post-Civil War era with Harper's Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been described by one historian of the subject as "a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art." M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast cartoon was achieved "because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners." C. Press, The Political Cartoon 251 (1981).

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal [485 U.S. 46, 55] Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.

Respondent contends, however, that the caricature in question here was so "outrageous" and "hateful" as to distinguish it from more traditional political lampoons. There is no doubt that the insinuation characterizing the respondent as a limp-wristed "faggot" by Ann Coulter is at best a distant cousin of the political lampoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" or "hateful" does not supply one. "Outrageousness" and/or "Hatefulness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" or "hatefulness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) ("Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action"). And, as we stated in FCC v. Pacifica Foundation, 438 U.S. 726 (1978):

"The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. [485 U.S. 46, 56] For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Id., at 745-746.

See also Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive or "hateful" to some of their hearers").

Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation, that speech that is hateful, vulgar, offensive, and shocking is "not entitled to absolute constitutional protection under all circumstances." 438 U.S., at 747 . In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), we held that a State could lawfully punish an individual for the use of insulting "fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id., at 571-572. These limitations are but recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985), that this Court has "long recognized that not all speech is of equal First Amendment importance." But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above.

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of utterances or insinuations such as the one here at issue without showing in addition that the utterance or insinuation contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a "blind application" of the New York Times standard, see Time, Inc. v. Hill, 385 U.S. 374, 390 (1967), it reflects our considered judgment that such a standard is necessary to give adequate "breathing space" to the freedoms protected by the First Amendment. [485 U.S. 46, 57]

Here it is clear that respondent Edwards is a "public figure" for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the speech and insinuation could not "reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated." App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury's finding to be that the insinuation "was not reasonably believable," and in accordance with our custom we accept this finding. For reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the utterance of an insinuation involved here. The judgment of the Court of Appeals is accordingly

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"The above is a parody. Screw all of you faggots who can't take a joke"

Each and everyone of you who salivated at the prospect of buring this woman at the stake for exercising none other than her God given rights deserves nothing by excoriation. So what if her remarks are hateful or bigoted? Look at yourselves.

When did it become a crime to say what we think? Whose bright idea was it that we should all be polically correct?

Should Americans live a life in fear that by speaking their mind that their words might be misinterpretted to mean something else? God help us all.

Whether you like Ann Coulter or not is immaterial, whether you agree with what she says or how she says it is irrelevant. I intimately know what it is like to live in a society fearful of what you say and I salute her as America's ultimate refusenik, one American woman who definately won't submit herself willingly to America's diversity classes and re-education camps. Whether you want to admit it or not, Ann Coulter for might end up being America's last vanguard of a free society.

"If liberty means anything at all, it means the right to tell people what they do not want to hear." -George Orwell

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