April 2011

By George C. Christie, James B. Duke Professor of Law, Duke University School of Law

In Europe, speech involving matters that are not generally known, even if the speech concerns events that took place in an area open to public view, has been successfully challenged as an invasion of privacy if the defendant was unable to show that the speech in question concerned a matter of legitimate public interest or contributed “to a debate of general interest to society.” What speech meets these criteria is for the courts to determine. That the public may have a great interest in the subject matter involved in the challenged speech is not by itself enough. Whether courts actually have the capacity to decide on their own what is a matter of "legitimate" public interest is one of the major themes discussed in my new book Philosopher Kings?  The Adjudication of Conflicting Human Rights and Social Values."

In the United States, the balance is tilted the other way since freedom of speech is the preferred value. Recent developments, however, contain a hint that a court-administered regime of what is acceptable speech has some support in the United States as well. In Snyder v. Phelps, the United States Supreme Court, quite properly in my judgment, upheld the right of members of the Westboro Baptist Church to picket near the funeral of a Marine killed in Iraq. The signs they displayed to express their contempt for the military’s tolerance of homosexuality were certainly vulgar and offensive, but Chief Justice Roberts, writing for the Court, declared that the issue involved was a matter of public concern and thus protected by the First Amendment.

Many American observers, however, have preferred the approach taken in the dissenting opinion of Justice Alito, who expressed the view that, if the plaintiff could show that he suffered severe emotional distress because of the grossly tasteless signs displayed by the demonstrators, the plaintiff should be able to recover under the common law tort of intentional infliction of emotional distress. Indeed, the approach taken by Chief Justice Roberts leaves open the possibility that vulgar hateful speech on matters that a court determines do not concern a matter of public concern is actionable. That suggests the possible adoption of something like the method used in Europe to decide conflicts between speech and privacy. Under the European approach, a court must balance the value of the challenged speech against the value of the other interests involved in the case before the court. These other interests can range from the desire of the plaintiff to preserve his anonymity to the judicially determined legitimacy of the public interest in the subject matter of the speech in question.

I disagree. In Europe,

“ ‘Originalism’ as many politicians practice it today has little to do with what the Constitution really says,” writes University of Baltimore law professor Garrett Epps in The Atlantic.

The Constitution’s Citizenship Clause, for example, should be read exactly as it is written: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

Yet “Da Vinci Code originalists” such as Sens. Paul Vitter, Mike Lee, Rand Paul, and Jerry Moran, suggest secret meanings where there are none, selectively quoting from the legislatively history to reach the conclusion that the children of undocumented immigrants born in the United States are not U.S. Citizens, Epps explains.

During a recent panel discussion on birthright citizenship co-hosted by the American Constitution Society and the Center for American Progress, Epps elaborated on the clear constitutional and historical underpinnings of birthright citizenship.

During the original debate on the clause, he explained, some expressed concern about so-called “gypsies” becoming citizens, calling them, “those people who flout our laws.”

This was what Epps termed the “Lou Dobbs moment" in the debate, and the drafters, unequivocally rejecting these concerns, had the following response: “How someone who professes such high regard for humanity and civilization could object to making citizens of these innocent children is simply beyond us.”

ACS and CAP are hosting a second lunchtime panel discussion May 11 on the potential impact of proposed laws that seek to repeal or limit the Citizenship Clause. Bookmark this link for more information about registering and watching the simulcast from your computer.

Watch video of the first panel discussion here, and read Epps’ full article in The Atlantic here.