SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
As the WSJ reports, the Supreme Court today ruled that the father of a fallen soldier could not sue Westboro Baptist Church for celebrating his son's death with a funeral picket that included signs with vulgar messages.
I think Chief Justice Roberts and the 8-1 majority of the Court reached exactly the right decision. The First Amendment prohibits the government from suppressing the right to free speech. It doesn't matter that the government acts through police trying to break up a peaceful protest or through a court awarding a multi-million dollar judgment against crazy minister Fred Phelps and his family church (for their use of military funerals as a staging ground to protest homosexuality). In fact, as the majority rightly points out, the damages are awarded, and the state is trying to limit Phelps' speech, precisely because of the hateful and harmful messages on Phelps' signs. That shows that it is the content of the message, and not its time, place, or manner, that has triggered the government's actions.
This doesn't mean that there aren't ways to limit the harm from people like Phelps. Maryland could have passed a law protecting funeral ceremonies, which it only did after this case -- a state can create reasonable restrictions on the time, place, and manner of protests, so long as they don't have anything to do with the content of the message (like prohibiting sound trucks from blasting commercials at midnight in residential zones). Phelps has a right to make his views known, but he doesn't have a right to hold up his signs in the middle of the funeral procession or with a bullhorn while a priest is conducting the service.
While I find Phelps' message despicable, the Court's decision is a welcome reaffirmation of the right to robust free speech, the very one that is of such benefit to the tea-partiers who are challenging Obama's oversized spending now or to the men and women fighting for free government in Egypt and now Libya. This was and should have been an easy case for the Supreme Court.
As a side note, and worth talking about, is that this case shows people attempting to restore some sense of decency and good manners to public and private life. The problem is that using the government to do it will not work, not just because of the First Amendment, but because one is really trying to restore cultural norms, and that has to come about through a broader consensus in society that is not imposed by the state.
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Oct '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Wouldn't it be interesting if they had decided to picket abortion clinics instead of merely the funerals of US Military men who died serving America. Doubtless, since murder of the unborn is a constitutionally protected right under some penumbra or emission or such, it is inviolate. Soldiers, however, bear no such protection.
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Hey, John, this may sound frivolous, but wasn't there a "fighting words" principle in law at one point? And wouldn't that be a pretty solid defense if some Marines just snapped and beat these people silly? I don't advocate that of course, but it strikes me that their "message" is exactly the kind of utterance that could be reasonably interpreted as inciting violence by hurling invective at people in an emotionally distraught state. Or have we hyper-legalized everything so that we have to consider the content of their speech as an abstract proposition?
Dec '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
I hate to say it, but I view this as a neccessary evil for the kind of free speech we have here in the states. When i see cases in Canada like what happened with the Indomitable Mr Steyn, it just goes to show there is no such thing as "a little bit pregnant" when it comes to free speech. I hate slippery slope arguements, but it seems that a case could be made for it here(?)
However, Id love to see some in depth analysis of Alito's dissent. Hotair has it as a headline, and its as close as I can get to a defence of censorship without totally cringing. You gotta love the lede sentence!
Edited on Mar 2, 2011 at 12:40pmSep '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Remind me again. Isn't Phelps a Democrat?
Nov '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
This was the right decision in a world that has long lost civility. Phelps does not represent the Jesus Christ with Whom I am associated.
May '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Professor Yoo,
My understanding of the First Amendment prohibitions is that the government is prohibited from infringing on the free speech rights of individuals,regardless of the message (apart from incitement to violence and danger of course). It would seem here that the Court here has determined that individuals are free from the consequences of that speech if it is public importance. The Court is not overturning a criminal judgment against Phelps but a civil judgement against him in which the trier of fact determined that Phelps' speech caused the emotional injury.
Does this mean that the tort of IIED as is pertains to a private citizen is no longer a viable cause of action if the subject is "of public concern"? It would appear to me that the same message directed at Mr. Snyder while not at his sons funeral may not have caused the same injury. Therefore, it would seem that the time, place and manner and not the message were instrumental in what caused the injury.
I'd be interested in your thoughts on this.
Jun '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
I agree. They should be ashamed.
One can only hope the Court will be as solicitous of our rights as they were of Phelps when they consider the individual mandate of Obamacare. We may win, but it won't be 8-1.
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
In New Jersey simple assault usually carries about a $400.00 fine. Were Mr. Phelps to show up at a loved one's funeral, I'd owe $800 because I'd kick his rear end twice.
Nov '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Why isn't anyone mentioning the fact that Alito has clearly lost his jurismarbles?
Jul '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
As near as I can figure, he is equating restrictions in this case with other established First Amendment restrictions. You may disagree, but I don't think that establishes that he is crazy or anything.
Jul '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Maybe the State of New Jersey should issue "rear-end-kicking" licenses for $400 each. For Phelps, I'd buy three.
Nov '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Wylee Coyote
As near as I can figure, he is equating restrictions in this case with other established First Amendment restrictions. You may disagree, but I don't think that establishes that he is crazy or anything. · Mar 2 at 1:35pm
From the opinion: "And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech."
Crazy.
EDIT: Let me modify my stance a little bit. If the emotional injury were to such a degree that his ability to function as a member of society were permanently impaired, I might be inclined to agree that this is not protected. But to claim that speech can be made illegal simply because it makes someone upset? No.
Edited on Mar 2, 2011 at 1:44pmJun '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
I've always considered a butt-whooping as symbolic speech--so a good First Amendment lawyer could probably get you off.
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
John - not sure I agree with the Court's conclusion. I like the First Amendment as much as the next guy, but I understand it to protect against prior government restraint on speech. The Amendment does not guarantee that bad results can never flow from speech. Why is the ability to pursue this particular tort case in court any more a government restriction on speech than, say, using the courts to pursue a defamation claim? Truth is of course a defense to defamation, but in either case, the issue isn't so much truth or falsity but the effect that the words have on their listeners. In fact, I would have thought that the tort here (intentional infliction of emotional distress) is an even stronger case since it is by definition an "intentional" tort, whereas defamation can, I believe, be committed by mere negligence. But I'm probably missing some salient point...
Jul '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Tommy De Seno: In New Jersey simple assault usually carries about a $400.00 fine. Were Mr. Phelps to show up at a loved one's funeral, I'd owe $800 because I'd kick his rear end twice. · Mar 2 at 1:23pm
We could pass the hat...
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Jan-Michael Rives
EDIT: Let me modify my stance a little bit. If the emotional injury were to such a degree that his ability to function as a member of society were permanently impaired, I might be inclined to agree that this is not protected. But to claim that speech can be made illegal simply because it makes someone upset? No. · Mar 2 at 1:41pm
Jan: that certain words may lead to private liability is not a declaration that the speech is "illegal." There's no issue here of prior government restraint or post-facto criminal prosecution. As I just said to John, I don't view this as very different from the tort of defamation, a well-established limit on free speech. And I'm sticking to my opinion until John smacks me down.
Dec '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Thankfully, the Patriot Guard Riders provide some protection for families of the fallen. I see irony that motorcyclists, those sometimes considered an uncivil part of society, are proving to be restorers and protectors of civility.
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Bill: Great question. There is indeed still a "fighting words" doctrine as it is called, but it seems to be very narrow these days. If it is still good, though, it would benefit Snyder after, in reaction to Phelps' signs, he beat him up right on the spot. I don't think it could be used to justify taking down Phelps' signs.
To provide an analogy, there is a famous Supreme Court case involving neo-Nazi's who wanted to hold a parade in a town (Skokie) with a population of holocaust survivors. The Court didn't think that would fit any fighting words doctrine and said that the parade could proceed.
May '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
I think this is besides the point. Freedom of speech is freedom of speech, regardless of whether its enjoyed near abortion clinics or military funerals.
Edited on Mar 2, 2011 at 3:45pmOct '10
Re: SCOTUS Upholds First Amendment Rights in Snyder v. Phelps
Doesn't free speech require that both parties of the speech in question be at their liberty to attend? It seems to me that Phelps is targeting a captive audience, who, unlike the pigeons on the public square, are not free to conduct their activities elsewhere?