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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  1. […] Law Prof Blog, Associated Press (via the First Amendment Center), Washington Times, CNN, First One @ One First, PBS, and the York Daily Record, which has closely followed this local story.  The transcript is […]

  2. […] Mike Sacks reports over at First One @ One First, the press and general public seeking entrance to yesterday’s oral arguments in the case, Snyder […]

  3. […] I met Ryan on the Supreme Court sidewalk before the first day of the term, where he gave me a preview of this study as we paced in front 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. Phelps. […]

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