SCOTUS: No jackass exception to the First Amendment

posted at 10:55 am on March 2, 2011 by Ed Morrissey

Considering just how emotionally and politically fraught the case of Snyder v Phelps is, the Supreme Court showed a surprising level of unanimity in striking down a lawsuit against the despicable Fred Phelps cult.  With only Samuel Alito dissenting, the Court dismissed a civil lawsuit for the intentional infliction of emotional distress to the family of a soldier whose funeral got picketed by the Westboro Baptist Church.  The justices ruled that the lawsuit would set a precedent that would eventually erode the right to free political speech:

The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount attention-getting, anti-gay protests outside military funerals.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son’s funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

The opinion can be found here.  The majority frames the question in this passage:

Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely  on whether that speech is of public or private concern, as determined by all the circumstances of the case.  “[S]peech on ‘matters of public concern’ . . . is ‘at the  heart of the First Amendment’s protection.’ ”  Dun & Bradstreet, Inc. v. Greenmoss Builders,  Inc., 472 U. S. 749, 758–759 (1985) (opinion of Powell, J.)  (quoting First Nat. Bank  of  Boston v.  Bellotti, 435 U. S. 765, 776 (1978)).  The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”  New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).   That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.”   Garrison v.  Louisiana, 379 U. S. 64, 74–75 (1964).  Accordingly, “speech on public issues occupies the highest rung  of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v.  Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).

“ ‘[N]ot all speech is  of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous.  Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145–147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import.  Dun & Bradstreet, supra, at 760 (internal quotation marks omitted). …

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of  “purely private concern.”   Dun &  Bradstreet, supra, at  759.  The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,”  “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for  Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.”  App. 3781–3787.  While these messages may  fall short  of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the  military, and scandals involving the Catholic clergy—are matters of public import.  The signs certainly convey Westboro’s position on those issues,  in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible.  And even if a few of  the signs—such as “You’re Going  to Hell” and “God  Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke tobroader public issues.

Apart from the content of Westboro’s signs, Snyder contends that the “context” of  the speech—its connection with his son’s funeral—makes the speech a matter of private  rather than public concern.   The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact  that the church finds much to condemn in modern society.  Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U. S., at 146, and the funeral  setting does not alter that conclusion.

This seems to be an eye-of-the-beholder issue.  Regardless of the nature of the intrusion into the private funerals of those who died in military service to this country, it’s clear that the Phelps cult believes that its protest is on public policy.  The protests rage against the tolerance shown to gays in American society and in American public policy, and warn that God continues to punish us for it.  They protest at funerals because their diseased political stance is that God kills our soldiers because of our tolerance for sin.

Alito is passionate in his dissent:

Our  profound national commitment to free and open debate is not a license for the  vicious verbal assault that  occurred in this case.

Petitioner Albert Snyder is not  a public figure.   He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq.  Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace.   But respondents, members of the Westboro Baptist Church, deprived him of that elementary right.   They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event.   They then appeared at the church, approached as closely  as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.  As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected  respondents’ right to brutalize Mr. Snyder.  I cannot agree. …

First—and  most important—the  Court finds that “the overall thrust and dominant theme of [their] demonstration spoke  to” broad  public issues.  Ante,  at  8.    As  I  have  attempted  to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance.  But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected.  The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’  personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, see  ante, at 9, but I see  no basis for the strange distinction that the Court appears to draw.  Respondents’ motivation—“to increase publicity for its views,” ibid.—did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern.   Nor did their publicity-seeking motivation soften the sting of their attack.  And as far as  culpability  is concerned, one might well think  that wounding statements uttered in the heat of a private feud are  less, not more, blameworthy than similar statements made as part  of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not  be enough  to preclude IIED liability.   To be sure, statements made on a public street  may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there  is no reason why a public street in close  proximity to  the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability.  If the First  Amendment permits  the States to protect  their residents from the  harm inflicted by such attacks—and the Court does not hold otherwise—then the location of  the tort should not be dispositive.   A physical assault may occur  without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” See ante, at 11.  And the same should be true with respect to unprotected speech.   Neither  classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

Be sure to read it all; Alito makes as good a case as I’ve seen for allowing the $5 million judgment to stand.

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