FIRST ONE @ ONE FIRST

Perry Brief Bonanza

Posted in Anticipation, Clairvoyance, Law and Politics by Mike Sacks on October 26, 2010

On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution.  Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month.  The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.

Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in.  Prop8TrialTracker.com has compiled 24 of the briefs here.

I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief.  I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap.  If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.

In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:

Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically.  But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:

The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”

Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination.  “In light of these repeated legislative and ballot-box defeats,” the brief states,

it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women.  Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.

The brief goes on to tackle the Ninth Circuit precedent standing in its way.  In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny.  But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”

The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:

The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers.  The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”

Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled.  Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.

Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation.  But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom?   Here, there is some equivocation.  As Walker wrote:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.  Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test.  Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension.  That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws.  But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.

As I wrote on the night of Judge Walker’s decision:

[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall.  Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades.  Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.

In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously.  After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense.  The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America.  Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity.  Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.

Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s.  I have doubts that his liberal colleagues will once again join him in ducking the standard of review.  If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws.  At worst, he will be committing unprincipled, political cowardice.

My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved.  However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself.  If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force.  Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.

Public Service Announcement

Posted in Non-justiciable by Mike Sacks on October 21, 2010

Friends of F1@1F–

This past summer, my work at F1@1F was supported by a grant from Georgetown Law’s Equal Justice Foundation.  Every year, EJF generously supports a significant amount of Georgetown Law students pursuing public interest careers.  And every year, EJF must refill its coffers for the next group of students who would otherwise be unable to get their starts in careers that make my reporting and opining on this site seem positively insignificant by comparison.

If you would like to make a donation to Georgetown EJF, please contact ejf@law.georgetown.edu.  All I ask in exchange for my work is your continued readership and valuable feedback, but a little spare cash towards my very important financial backer from the summer will be appreciated far beyond this blog.

Thank you.

Mike

Captive Audience in the Snyder v. Phelps Line

Posted in F1@1F Friends by Mike Sacks on October 14, 2010

Ryan Malphurs, the second-most ultimate Court watcher in my column from the first day of oral argument this term, also stayed overnight for the Snyder v. Phelps argument last week. He penned an open letter Op/Ed to the Court with a unique take on that night’s events, as well as his insights into overall state of the general admission line derived from his scores of sunrises on the sidewalk since 2006. With his permission, I’ve copied the column below.

Dear Mr. Chief Justice and May it please the Court,

The opportunity to observe Supreme Court oral arguments offers citizens a rare window into one of the Court’s most revered rituals. The Court offers a limited number of seats to the general public for each oral argument and distributes the tickets based upon the position in line for which the individual occupies. Motivated citizens can wait in line many hours or even days before a case to secure a seat in oral arguments. Citizens interested in the D.C. v. Heller case slept outside for three days prior to the Court’s distribution of tickets.

I love the egalitarian nature of this approach to oral arguments because it ensures that any citizen can gain admittance to the Court’s arguments. Only in line for Supreme Court oral arguments can you stand shoulder to shoulder with a homeless person, construction worker, law school student, and plaintiff or respondent (all were in line together on Monday). However, over the past few years conditions within the citizens’ line have grossly deteriorated contributing to injustice at the very site where justice should be most prominent.

Over the past four years I have observed more than fifty oral arguments and have made it a habit to attend the opening of the Court’s term every October. Another gentleman and fan of the Supreme Court has been attending the term’s opening arguments every October since 1989, an incredible feat. This past week I waited outside each day to gain entry into the Court’s oral arguments, but it was on Tuesday when I endured reprehensible behavior that I never believed would be tolerated at the Supreme Court.

In line on Tuesday afternoon for Snyder v. Phelps, I found myself directly behind Phelps’ supporters; throughout the day, evening, and early morning these supporters evangelized to the entire crowd, pacing up and down the line, questioning our religion, condemning us to hell, and calling us whores and fags among other things. For a few hours their antics were somewhat ridiculously humorous, but after nearly eight hours of intermittent condemnation their speech grew both offensive and bordered on the category of fighting words as the crowd grew angry and restless. During this time, police officers from the Supreme Court and the Capitol police observed from a distance, but did not intervene.

At 10pm those of us in line began preparing to sleep, hoping to get some rest before the next day’s oral arguments. However, as we laid down, the Phelps’ supporters began screaming at us, encouraging their children to take turns yelling to prevent us from sleeping. Lying in my sleeping bag, with an individual literally screaming into my ear, I could not help but note the irony of the situation. Much like Snyder v. Phelps, here we were a captive audience, unable to leave the line because doing so would have cost us our place. We were forced to endure the group’s objectionable vitriol. The Court has ruled in Frisby v. Schultz that “the First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid objectionable speech.” The Court has a designated area for groups and individuals to express their speech, and citizens waiting in line before oral arguments should not be forced to endure hours of hate ridden speech as a captive audience. I am angered that this type of speech, which is clearly not protected, was even tolerated by officers outside of the Supreme Court. Americans have come for centuries to the Court seeking protection, and we should expect, at the very least, constitutional protection from a group’s hatred when serving as a captive audience. I hope you make a similar determination in Snyder v. Phelps.

Adding insult to injury, while everyone was asleep the Phelps’ supporters decided to move their materials to the front of the line, usurping the position of those who had spent two nights out in the cold to be first in line, a fine example of Christian behavior. When the group of students who had originally been first in line complained to the police about the group’s movement, astonishingly the police refused to address the situation; only when the crowd grew riotous, at a group of twenty Phelps’ supporters joining the front of the line at 8am, did the police partially intervene, though surprisingly allowing the initial usurpers to remain even after a policeman acknowledged the group of students had been first in line for two days.

The egalitarian and often fair nature of the Court’s line for oral arguments has begun deteriorating over the years without any guidance from the Court, potentially disadvantaging the very citizens who hold the Court dear. Last year a tour company hired ten paid individuals to stand at the front of the line and hold spots for 60 of the company’s clients. The police again declined to intervene and the crowd’s aggressive nature frightened the operator who pulled the paid line holders from their places and abandoned his plan.

I am petitioning the Court to maintain the egalitarian and just nature of the line for oral arguments because these are active citizens who have spent days and nights outside to observe and participate in ritual of oral arguments. Citizens willing to endure such extremes are a rarity today and the Court should offer an orderly and secure environment, where these dedicated citizens should not have to endure the very same unprotected speech the Court has ruled against. Tolstoy has written that “where there is law, there is injustice,” but one should never expect injustice when standing before our country’s highest court.

For Malphurs, oral arguments have served as research for his Ph.D. work “regarding the cognitive influence of communicative interaction between the justices and advocates.” His paper, “Making Sense of ‘Bong Hits 4 Jesus': A Study of Rhetorical Discursive Bias in Morse v. Frederick,” served as the basis for his dissertation and is available on SSRN. I endorse the paper for all F1@1F readers, especially those interested in the intersection of law and communications

Outlaw Canceled, A.V. Club Commentariat Pitches

Posted in Non-justiciable by Mike Sacks on October 13, 2010

Outlaw, NBC’s god-awful Supreme Court drama starring Jimmy Smits, got canned yesterday.  When The Onion’s A.V. Club announced the news, the site’s commentariat got to work pitching new SCOTUS-themed shows:

 

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Road Trip, FantasyCast, Arena Tour!

Posted in Non-justiciable, Supreme Court Side Walk by Mike Sacks on October 10, 2010

The First Lady of First One @ One First and I just returned from a weekend trip to Philly.  We left on Friday, just in time for her to be a captive audience to the Court’s just-released audio from last week’s oral arguments.  But moments into Snyder v. Phelps, her initial reluctance gave way to rapt attention and demands to “pause it!” so she could give her own impressions of the issue at hand.  She enjoyed the back-and-forth of the justices and advocates so much that when we hit the road today, she asked to pass the time at the toll booths with Connick v. Thompson.

For those who do not have an hour on hand to subject your special someone to the full SCOTUS treatment, Josh Blackman of The Harlan Institute has produced a thirteen minute “FantasyCast” of Snyder as part of the Institute’s FantasySCOTUS project.  In it, he compiles the argument’s audio highlight reel to create a very effective summary of what transpired last Tuesday morning.

Despite his job well done on the FantasyCast, however, I know Josh would agree that the full hour’s argument is worth the listen.  To put the FLOF1@1F’s enthusiasm in context, it took her three years to tune her ear to the differences between AC/DC’s Bon Scott and Brian Johnson eras, but only two hours to correctly identify each justice by voice.  If she’s proven more fit for the Supreme Court Side Walk than the Heavy Metal Parking Lot, I’m certainly not complaining.  In fact, should her response be typical for non-SCOTUS obsessives, then the Court should consider augmenting its annual budget with some lucrative summer arena tours.  Talk about two birds, one stone: the justices would be able to quit their annual Congressional grovel for pay raises, and the peoples’ increased opportunity to watch the Court in action would quell some of the cries for cameras in the courtroom.

Reflections on My Chat with Justice Stevens re: Cameras in the Court

Posted in Justicespotting, Non-justiciable by Mike Sacks on October 8, 2010

This morning at Georgetown Law’s symposium in celebration of Justice Stevens, I had the good fortune–and great honor–of speaking with the Justice himself for a few minutes.  Upon my introducing myself, I was surprised–and greatly honored–to learn that he was familiar with my work.  So as I handed him a printed copy of my article recounting his final oral argument, he asked if it was the one he saw in the post the other day.

“The Post?” I asked.  “I’ve written for the ABA Journal and Christian Science Monitor, but never the Washington Post.” [Note: This conversation has been reconstructed from my memory; the quotations are accurate portrayals of our discussion, but not of the exact words spoken.]

“No, I received something of yours in the post.”

He opened the envelope and looked at the first few sentences of the story.

“This is not the same one,” Justice Stevens said, as he thanked me for the new reading material.  And whoever mailed the justice one of my columns, I thank you.

He then asked my opinion on cameras in the Court, perhaps implying that the article he had already seen was the one from June’s final day of the last term.

I told him that I am fully in favor of televised proceedings.  He mentioned that there could be some adverse consequences.  I responded that his former colleagues could be trusted to smack down any grandstanding lawyers, as they have always done.

“And what about the justices themselves?”

“The Daily Show can keep them in check,” I suggested.  By his knowing laugh, I submit that the Justice agreed with me.

I had the feeling that Stevens trotted out the commonly voiced concerns about cameras in the Court not because he believed in them, but rather because he wanted to hear how easily a young Court watcher could swat them away.  It is disappointing that the Court’s reluctance to televise its oral arguments stems from its lack of faith in the Bench and Bar to behave themselves in front of the cameras.

As the event began and the panelists began recounting their stories of Justice Stevens’s “humble, devastating, and kind” demeanor from the bench, as former Solicitor General Paul Clement aptly described it, I kept thinking how tragic it is that the vast majority of Americans never had a chance to see Justice Stevens in action.

At the end of each oral argument week, starting today, the Court is releasing the audio recordings of the week’s proceedings.  These recordings invite listeners to listen for themselves to how the Court deals with the country’s thorniest legal issues.  But as exciting as it is to hear Justice Kagan’s first question of her career, Justice Scalia do his best “Sh*t My Dad Says” impression with his various curmudgeonly comments, Justice Ginsburg re-upping her feminist cred, or Justice Alito unwinding his increasingly compelling hypotheticals, we are many years removed from the radio days of Justice Stevens’s youth.

For every argument that the justices will spin out of control and play to the cameras, there are forceful answers in return.  First, some justices already play to the portion of the public that can attend, so what’s the damage if the rest of America sees their antics?  The law should be engaging, not forbidding, and there’s much to be said for Chief Justice Roberts’s more relaxed, laugh-tracked regime, even if a few commentators here and there will take some hypotheticals out of context.

Second, televised proceedings will allow more Americans to know the names and faces of Supreme Court justices.  As public servants who now undergo major media blitzes upon their nominations to the bench, the justices should not feel entitled to perpetual anonymity.  And really, most Americans, though valuing the opportunity to watch the Court in action, will not commit themselves to C-Span three days a week so to better track the justices down in their Northern Virginia supermarkets.

Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen.  Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions.  These scenes cannot be conveyed over audio.  From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.

Until that day arrives when we can watch the justices go about their business, however, today’s footage from their class photo session will have to suffice.

Let’s hope that these nine men and women, all of whom, like Justice Stevens, are or will be national treasures by the time their tenures have expired, will soon show enough faith in themselves and the public to finally put cameras in the Court.

This piece has been cross-posted at The CockleBur.

The View From The Zoo, Part II

Posted in Supreme Court Side Walk by Mike Sacks on October 6, 2010

By Supreme Court Side Walk standards, the Snyder v. Phelps scene was a wild one.

 

Orlando Bethel explains why hating gays is congruent with embracing civil rights.

Zion Bethel, 12, and his sister Kazia, 14, talk about sin, perfection, and getting thrown out of dance class.

Zoe Bethel, 15, contemplates a God of hate and love.

Students from Eastern University’s political affairs club share their thoughts on the Phelps’s.

Sam Garrett, a GW freshman, strips to his skivvies on the Supreme Court Sidewalk in counter-protest to the Westboro Baptist Church.

God Damn Constitution

Posted in Case Reports by Mike Sacks on October 6, 2010

Snyder v. Phelps attracted more press and general public than I have seen in my time covering the Court.  Granted, no abortion cases or Presidential elections have come up since I started F1@1F, but even last term’s campaign finance and gun rights blockbusters couldn’t compete with today’s scene.

The upshot, however, is that those cases yielded landmark decisions, while Snyder will bring nothing of the sort.  If there’s any lesson at all to be gained from this morning’s oral argument, it’s a reassertion of the truism that bad facts–or, in this case, exceedingly unique facts–make bad law.

The issue in this case is whether the father of a fallen marine may seek damages for intentional infliction of emotional distress against Fred Phelps’s Westboro Baptist Church for picketing the soldier’s funeral with signs reading, “Fag Troops” and “Thank God for Dead Soldiers.”

From these facts, the justices struggled to find a principle upon which they could base their ultimate decision.  On the one hand, the Court is loath to carve out new exceptions to speech protected by the First Amendment.  Try putting “funeral protests far enough away not to be seen or heard by the mourners” at the end of the famous Chaplinsky dicta from 1942 enumerating unprotected speech: “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”  Stands out like, well, a picketer at a funeral.

On the other hand, the justices are human, and what humans, spare the Phelps family, wouldn’t sympathize with Al Snyder’s suffering?  But try as they might, the justices were simply unable to shoehorn the Phelps family’s practices, as applied to Matthew Snyder’s funeral, into any of the Chaplinsky categories.

Justice Antonin Scalia latched onto the “fighting words” doctrine, only to be systematically disabused of the idea by Margie Phelps, Fred Phelps’s daughter and WBC’s lead counsel.  She not only defied Scalia with the Court’s definition of “fighting words” that proved the doctrine inapplicable, but also reminded him that “[n]o element of the tort under which liability attached included fighting words.”

Justice Stephen G. Breyer also took his turn, invoking the WBC’s speech against Matthew Snyder on its website and on television as something akin to defamation.  Sean Summers, Snyder’s counsel, went along with Breyer, but Justices Ruth Bader Ginsburg and Sonia Sotomayor simultaneously jumped in to remind Summers that defamation–which revolves around a statement’s truth or falsity–was not the tort at issue.

Finding no quarter for funeral with pre-existing categories of unprotected speech, Breyer sought refuge in his familiar balancing tests, suggesting ways to allow the tort of intentional infliction of emotional distress “to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

But Breyer is a lone wolf when it comes to First Amendment pragmatics.  Where he seeks to balance interests, the other justices simply want to decide whether the WBC’s speech is protected or not.

Justice Alito, the sole dissenter in last year’s United States v. Stevens, in which the Court genuflected to the First Amendment in striking down a federal statute criminalizing depictions of animal cruelty, appeared the most willing to deem the funeral protest unprotected.  He brought new relevance to the WBC’s website, using its attacks on Matthew Snyder as context to rebut the Phelps’s argument that the funeral protest was directed towards the nation and not Snyder’s family.

Moving on, Alito unloaded a hypothetical on Phelps:

Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED. And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home. And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do? Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it. And on and on.

Now, is that protected by the First Amendment? There is no false statement involved and it’s purely speech.

By the tone of his voice, Alito clearly thought such a diatribe on an old, defenseless woman–“a Quaker, too,” by Scalia’s surmising–was unprotected.  When Phelps proved hypo-proof on that scenario, drawing the justices back to the case’s specific facts despite attempts by Chief Justice John G. Roberts and Justice Elena Kagan to recognize a limit to vile speech of some public concern, Alito upped the ante:

Suppose someone believes that African-Americans are inferior, they are inherently inferior, and they are a really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred. … That’s a matter of public concern?

Phelps said yes, it is, as long as the racist doesn’t get “up close and in their grille.”

At this point, Justice Anthony M. Kennedy sprang forward, only now sensing the potential for one’s self-definition and dignity in the universe being threatened.  Noting that “all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young,” Kennedy feared that if any of these components are of public concern, there is no limit to the damage the WBC might do to innocent bystanders for the sake of maximum exposure.

Yet for all the doubt the justices expressed towards the WBC’s claims of constitutional protection, Snyder’s argument simply could not carry the day.  Challenged by Justice Kagan to articulate a standard for how to determine which protests “glomming to a private funeral” should or should not fall outside of the First Amendment, Summers could articulate no governing principle.  Ultimately, it seemed, Snyder sought not a general rule of law, but rather a Constitutional carve-out for his own grief.  Such personalized positions are not the stuff of Supreme Court precedent.

In the end, while Summers faltered, Margie Phelps refused to be pinned down.  Her arguments that Snyder himself made his grief of public concern in a statement to the press following Matthew’s death–thereby making him fair game for a protest on the nation’s tolerance of homosexuality, which was staged 1000 feet away and out of his ear- and eyeshot so to comply with local ordinances–were too solid for anyone committed to robust free speech principles to deny.

Should the Court, as appears likely, hold its nose and side with the Phelps’s, then this case will stand for a principle older than the First Amendment and our Constitution itself: it’s always good to have a lawyer–or sixteen lawyers–in the family.

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The View From The Zoo

Posted in Supreme Court Side Walk by Mike Sacks on October 6, 2010

Some photos from the sidewalk:

And here’s a bonus video:

[YouTube=http://www.youtube.com/watch?v=Fk8c4t8achE]

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Snyder v. Phelps Preview

Posted in Anticipation, Supreme Court Side Walk by Mike Sacks on October 5, 2010

Orlando Bethel, left, with two of his three children.

The Snyder v. Phelps line began Monday night at 8pm.  Twenty-four hours later, the Georgetown undergraduate students who started the line were joined by fifty more new friends.  The Bethel family, pictured above, were not out there to make friends.  Here’s a video of Glynis Bethel, the family’s mother, on their beliefs:

Videos of the rest of the family coming soon.  More footage to be taken tomorrow morning, too!

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