FIRST ONE @ ONE FIRST

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

13 Responses

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  1. Milt sacks said, on October 15, 2010 at 9:58 am

    One could understand where a recourse to physical action would have have been justifiable after the fanatics had usurped the line.

  2. Friday Round-up : SCOTUSblog said, on October 15, 2010 at 11:27 am

    [...] the First One @ One First blog Mike Sacks has posted Ryan Malphurs’ open letter to the Court in which Malphurs discusses in [...]

  3. Miguel said, on October 15, 2010 at 12:36 pm

    Mike, I think you may have had a copy & paste problem. The first paragraph of Malphur’s statement cuts off rather abruptly?

  4. Miguel said, on October 15, 2010 at 12:40 pm

    Also, having a Phelps supporter literally ‘screaming into your ear’ would make out a pretty clear-cut case for battery, and their conduct in cutting in the line might make out a case for disrupting the peace? (That old policeman’s favorite).

  5. SCOTUS NINE said, on October 15, 2010 at 2:03 pm

    I’m curious if their actions might have fallen under Scalia’s fighting words category? I wonder how an altercation outside of the Court related to fighting words and/or a captive audience might have impacted the oral arguments since both issues were addressed in the arguments.

    It’s just unbelievable that the Court police, with a ubiquitous presence on the Veranda, allow such behavior to occur. I’m sure they believe the Capitol police should deal with the issue because the sidewalk is outside “their jurisdiction.”

  6. Joe said, on October 17, 2010 at 1:54 pm

    The retaliation case is less “sexy” but sounds like it will affect more than this one.

  7. Glynis Bethel said, on October 21, 2010 at 6:39 am

    GOD is good.
    Ryan Malphurs is the BASTARD who started this whole confrontational thing with me. The Hindu girl is the one who allowed this conflict to happen. Ryan was inside of the courthouse and seemed disappointed that the line was already forming when he arrived outside on the sidewalk. The people, who Ryan falsely accused of skipping the line (in which he speaks of clandestinely) were my family and I. We were in the line FIRST before he came along. When this Ryan Malphurs hypocrite came and cut the line by pretending that he was with the young college students (the ones who were waiting longer than any of us), this is when all hell broke loose. He shared with me personally that there was really no squatters’ rights and he checked-in with the security who said the public property was open to anyone. Ryan then took it upon himself to remain with the group (to paraphrase) and had the nerves to cut me in the line. I guess he felt that “Christians” would be push overs and let his butt skip the line without any confrontation. He was wrong. We are Christians, but we are not fools. Instead of dwelling on thinking about how angry he made me, I decided to do the right thing. Since we left our MASE at home, my ONLY recourse was to not allow the college students, in conspiracy with Ryan, to take my ONE spot in the line and skip my family members. I knew the fair thing would be for me to just get my place back in the line ahead of Ryan. Since, it seemed like the college students were allowing others to continuously skipp them and position themselves in front of me, I decided to just place myself in the front of the line. Being a peacemaker, I didn’t have to argue anymore with Ryan about his transgression against me. Oh yeah, Ryan, who seemed to be stalking me and harassing me verbally about my desire to use the bathroom and get something to eat and my absence from the line, was not being screamed at. He is referring to my 14-year-old daughter who was having the time of her life laughing loudly in his ear as he attempted to sleep. The scene was hilarious.

    There was disorganization on the sidewalk in front of the Supreme Court. Because I like law-and-order, I want to suggest that a small hotdog cart with a variety of food and the portable potties be positioned on the PUBLIC property so that people, who are waiting in line, will not have to leave for prolonged periods of time. The solution, I believe, would be to have these conveniently station outside and have a rule that if you move, you loose. This way, the local people won’t be able to take advantage, like the college students did, of people coming out of town. We made the sacrifice to travel seventeen miles to sleep on the ground and to cancel our other activities so that we could be on the sidewalk. We also had a hotel in we couldn’t enjoy because we had to secure our place in line personally.

  8. Glynis Bethel said, on October 21, 2010 at 6:44 am

    GOD is good.
    My name is Glynis Bethel and I am a preacher of the same type of Gospel message that shares who GOD loves and who GOD hates. In the Bible, there is a time to “love,” and a time to “hate.”
    The real issue here is the fact that GOD hates Mr. Snyder and his son. Snyder vs. GOD is the appropriate case title. The Phleps are simply sharing Bible scriptures in which you people tend to ignore such as: Psalms 5:5 and Psalms 11:5 and Hebrews 12 and Romans 9:13 and Hosea 9. These scriptures communicate that GOD HATES all workers of iniquity or sin. GOD also HATED Esau who was profane and as a fornicator. GAYS fornicate and this is why my family and I were chanting, “GOD HATES GAYS.” Also, GOD hates white, Spanish, Afro-American gays. There is no distinction to who GOD hates pertaining to this matter. Also, GOD HATES sleeperS,” or women who fornicate.
    GOD is the one who killed Mr. Snyder’s son because he is hated by GOD for his decision not to serve GOD. The Bible states in Romans 10 that the wages of sin is DEATH. You can see the bitterness against GOD on Mr. Snyder’s face. The Bible states that we should commit no “murder,” and Matthew went into another country to help murder other people’s children and seemingly with his daddy’s approval. Now when the tables are turned, Mr. Snyder is the one who has to also deal with the death of his son. Mr. Snyder is suffering along with the Iraqee people. I would believe that he would feel indifferent about war and have a change of heart, but he continues to say that what his son was doing was honorable. Taking another person’s life is a SIN in the eyes of GOD. Isn’t it ironic how the Iraqee people have to deal with the American’s posting on the Internet how they have fought for “our country” (by killing your sons and daughters). They (Americans) hold high the American flag and make comments of how bad these people are and worthy of death. What recourse do these people have to sue Americans who brag that they kill for their country while in a public forum?

    Reading Ryan’s lies with hypocrisy reminds me of the lies of Mr. Snyder. Even though Mr. Snyder is the guilty one who is not following the laws of this land and as a bully wants to force the Supreme Court witches to twist the laws on his behalf, he is deceptively attempting to make people believe he is a victim.

    The whole litigation or lawsuit is a lie. From my research, there was no literal protest at the funeral, but on a public slab of property. Mr. Snyder and his lawyers are a bunch of liars and criminal charges should be pressed against both for perjury and extortion. Mr. Snyder is illegally attempting to extort money from the Phelps because he is angry at GOD for allowing his ONLY son to be killed or destroyed (including any potential grand kids). Because the Phelps agreed with what GOD did and made their Religious speech public, Mr. Snyder wants to get revenge by causing an emotional and financial loss to the Phelps. What a sore loser!

  9. SCOTUS NINE said, on October 21, 2010 at 11:37 am

    What a great example of Mr. Malphurs’ letter. These people are full of hatred. They are welcome to share their religious hatred, but not to a captive audience.

    These people were holding line members captive to their speech; an action that is not constitutionally protected.

    Listening to these people in line, surrounded by young college students, I couldn’t help but think about the Rutgers’ freshman that killed himself. During their formative years, these Phelps supporters subjected, young college students to sexual slurs at a time when they are most sensitive. I was saddened by their behavior and their treatment of others. Despite their sins, I hope God will have mercy on these Phelps supporters. They are clearly not “Christ”-like in their behavior.

    I do think Ms. Bethel has a good suggestion for managing the line, but I can’t see the Court allowing portable toilets in front of the building. Perhaps a policeman who sits at the front of the line through the evening and into the early morning?

  10. Glynis Bethel said, on October 21, 2010 at 6:55 pm

    GOD is good.
    A few corrections. For the wages of sin is death Bible scripture is Romans 6:23 instead of Romans 10. We travelled not only 17-miles, but also about 17 hours.
    “SleeperS” means whores, but my program changed the literal to a substitute word.

    Additionally, the children want it to be clear that Mr. Marsupial (AKA Mr. Malphurs) was sleeping on top of their personal mat.

  11. Michael S Woolls said, on October 25, 2010 at 10:15 am

    Letter of note 10-21-2010

    In a request threw a congressional senate and congress meeting order in the aspect of my birth marking that gives to that of the mind since the date of birth the writing’s in the biblical out look of information out threw in the aspect of the dating of the bible. In this aspect of issue in my quest to use healing marijuana for the mind in the acute use of medical issue in the aspect of the issue of Christ that proprotain and the use of herbs that are given use in the bible, in the basis of issue of to volume of T.H.C in the request to purchase threw the Alexandria, Va government.

    The since because sign on my thigh which can be found in the back of one of the old biger college webster dictionary, gives to much of a occurrence that is a issue in the aspect of biblical information and other aspect of information that give the same issue of information.

    When I wake up in the morning it is hard for me to pray the right way and would like for reason of front lobe brain damage, in the aspect of the pain in the brain and the concept of the mind in the issue of the since and before sign of all that would include anguish of pain in the mind.

    In the since of the “vesture” of any form of my documents gives to the coincident, the issue of the bible which cause to much mental pain

    On a step which take’s time down by the whole community and the church’s on how to be spiritual my issue is that I have asked refuge and sanctuary for the since because symbol on my left thigh at the congregation of the earth of all faith. I’m being baptized again by the Catholic church’s and will go naked in front of a few women in a privet room they call this, “disrobe” since I have money it’s well worth it to A women but it need’s to be privet, since also I’m a “Whales Royal Family Member” being the second cousin of William Windsor and Harry Windsor I’m third to the throne, aunt “Bethany Elisabeth II” it kosher to the aspect of A women after being made in the italian family as A step family member it’s up to the community to give the bride .

    My work is worth an amount on some thing some one can use in the accesspatentgroup this includes the “Commonwealth One Bank” and my documents with the bank since this is business, my seed is in the same to a women of seven which they have to give to the lord,look’s are included in the amount of worth given the preach the amount of information to my privet part, size is a good worth as well which I have done so that the girl’s will know.

    Only to stand naked because I do not feel to be touch by a women in the eye’s of christ but it’s ok to be that of the congregation in the community.

    I’m 100% Indian Sicsempertyrannis A third party seat holder foreign affair a look at what I go threw

    Discussion issue

    Sincerely

    Michael S Woolls

  12. Michael S Woolls said, on October 25, 2010 at 10:53 am

    MR.Malphurs would he know I’m homeless?

  13. [...] of the Court trying to keep warm.  He stayed in line for the rest of that first week and later, in a post for F1@1F, reflected on his night with the crowd for Snyder v. [...]


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