More on Snyder v. Phelps

I have recorded a podcast on Snyder for the Federalist Society and, while I won't repeat the podcast here, I will provide some of my thoughts on the Court's ruling.   The key to the Court's decision was its conclusion that the messages displayed by the Westboro picketers, though "short of refined social or political commentary," were commentary on matters of "public import" -- "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."  Because liability for intentional infliction of emotional distress turned on the content of the speech -- indeed, its viewpoint --  the speech was shielded by the First Amendment.  The Court observed that time, place, and manner restictions on funeral picketing could be valid, but expressed no opinion on the funeral picketing laws of 43 states.  Nor could Snyder's invasion of privacy claim succeed because he was not a captive audience -- the picketers were 1000 feet from the church in a public place and did not interfere with the funeral service.

Only Justice Alito, in his dissent, discussed the later web posting by the Westboro defendants, which consisted of a diatribe concerning how the parents of deceased Corporal Snyder had raised their son.  To Justice Alito, neither the picket signs nor the web posting had much of anything to do with public discourse.  Rather, the Westboro defendants had engaged in a vicous verbal assault on a private figure. 

The Court said that speech is of public concern when it relates to any matter of political, social, or other concern to the community, when it is newsworthy, or when it is of general interest and value to the community.  So, does speech become of public concern simply because it attracts a news camera? May a speaker mount a brutal verbal assault on a private figure so long as the tenor of the remarks touch upon matters of general interest to the community?  If so, did the Court accomplish what the medieval alchemists failed to do: Turn lead into constitutional gold?  The Court could have drawn a more nuanced line:  Speech of public concern is not protected when it is specifically intended to inflict severe emotional distress upon a  private figure, actually does so, and there is no reasonable connection between the public issues raised by the speech and the target of the speech.  But the Court did not do so.  It reaffirmed its commitment to robust, uninhibited, wide-open, and even vicious public discourse, no matter how much collateral damage occurs.  Perhaps that this is the price of free speech.  The Westboro people show us how expensive it can be.  

UPDATE:  The podcast is not yet available.  I will post the link when it becomes available. 

Comments

[Alfred Brophy]

Hi Calvin--is there a link to the podcast?

[Patrick]

I'm pleased with the Court's holding in this case. At bottom, we take issue with the Phelps' speech because we despise its content. That raises enough red flags to warrant a pretty hefty dose of caution.

The absence of meaningful discussion about the internet posting is interesting. I disagree with how Alito characterized the internet communication (I'm not convinced it was as 'targeted' as Alito made it seem) but I actually thought Breyer's concurrence said more about the internet than Alito. I read his concurrence as warning that the Court may reach the same result in a case based entirely upon internet communication.

Anyway, thanks for the coverage. I look forward to the podcast.

[Shena]

Lot of folks might disagree, but I think the Supreme Court got it right on this.