Captive Audience in the Snyder v. Phelps Line

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.

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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.

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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