Previewing tomorrow’s argument in Snyder v. Phelps

by on October 5, 2010  •  In Supreme Court

The Supeme Court hears arguments Wednesday in Snyder v. Phelps, a case that will decide whether the law can squelch especially hateful anti-gay speech by the self-annointed "prophets and prophetesses" of a tiny Kansas church. It seems to me that only a new carve-out of First Amendment protection could allow sanctions against this speech, and I find it surprising that the Court granted cert. It did, though, so at least four Justices must think that there is some plausible question in the case.

Here is an excerpt from the SCOTUSblog summary of the main briefs:

Albert Snyder’s brief on the merits … assert[s] that the Court should not extend [Hustler Magazine v. Falwell] to an intentional verbal assault on “a private individual [who] has done nothing to attach himself to a public event or controversy.”   The Rev. Falwell, it noted, sued the magazine in his role as a public figure…

The starkly contradictory view that the Westboro Baptists hold of the core issues in the case emerged anew in their merits brief.  Once more, they stressed their claim that their expression fit completely within the Hustler precedent — public speech that cannot be proven false, and that was not uttered with “actual malice.”  “The Constitution,” it asserted, “is imperiled if a subjective claim of outrage can be used to penalize into silence speech that does not make false statements of fact, uttered in public arenas on public issues.”…

It also expressly disagreed that Snyder had any claim to privacy invasion, since funerals are public events, and that is especially so for the funerals of soldiers…

Snyder’s appeal draws fervent, outright support — most conspicuously from 42 members of the U.S. Senate, speaking in favor of the laws passed by Congress and 46 states to limit picketing at funerals and calling for a full Supreme Court embrace of the broad notion that protesters like the Westboro Baptists should not be “free to hijack [this] private funeral as a vehicle for expression of their own hate.” and 48 states and Washington, D.C., similarly defending state laws against what they call “psychological terrorism that targets grieving families.” …

Lining up on the side of the First Amendment (while distancing themselves from the “inexplicable and hateful” message of the Westboro Baptists),  …  [a] group of First Amendment scholars rather boldly suggested in its brief that the dignity interests of those engaged in burying their dead are not really at issue in this case, because there are ample means — within the concept of “time, place and manner” restrictions tolerated by the First Amendment” — to protect those interests.  Many of the amici filings on this side of the case appear to be most alarmed at the prospect that the Court would significantly expand the “captive audience” concept.

The Court has been served up in this case with a set of mutually exclusive choices — deciding how to interpret the facts of what went on [at Matthew Snyder's funeral], deciding on the meaning and reach of its prior First Amendment rulings on state torts and on media vs. non-media defendants in such lawsuits, on the nature of the Westboro Baptists’ expression and its link — or lack of it — to public questions, on the legal “personality” that Matthew’s father assumed at the time of the picketing and since, and on the definition and scope of “captive audience” doctrine.

It seems clear that, to rule definitively for either side, the Court would have to make most if not all of those choices in one direction.  Each side’s argument depends upon its explicitly tailored view of not only the facts but what those facts mean to the legal concepts.  For all of the effort, on each side, to make the case fit neatly into already established First Amendment norms, this case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one.  But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around  the Westboro Baptists’ message may also be a daunting one..


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