By The Way, This May Be The First Time The Phrase “Getting Up In The Grill” Was Used At The Supreme Court

Robert Barnes at WaPo:

A nearly unanimous Supreme Court ruled Wednesday that the First Amendment protects even hurtful speech about public issues and upheld the right of a fringe church to protest near military funerals.

Chief Justice John G. Roberts Jr. wrote that the Topeka, Kan.-based Westboro Baptist Church’s picketing “is certainly hurtful and its contribution to public discourse may be negligible.” But he said government “cannot react to that pain by punishing the speaker.”

“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.

Justice Samuel A. Alito Jr. was the lone dissenter.

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.

Ilya Shapiro at Cato:

Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment.  A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.

As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.

Tom Goldstein at SCOTUSBlog:

The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding.  “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief.  But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.”  The Court continued:  “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. …    Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court left undecided two important issues that it concluded were not squarely presented.  First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held.  The Court did not decide the constitutionality of that statute or other similar federal and state laws.  The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website.  But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing.  The Court was therefore able to limit its decision strictly to the context of funeral protests.

Dan Miller at PJ Tatler:

Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawnIn his concurrence, Justice Breyer expanded on this cautionary note:

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity.  The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).

Justice Alito expanded on the points raised in Justice Breyer’s concurrence at some length in his dissent at pages 23 – 36, particularly the analogy to a physical assault by A on B in order to gain an otherwise unlikely media audience for his views.  Both Justices Breyer and Alito seem to think that A’s  statement of views in the media presence would not shield him from liability for the assault, physical or verbal.

In raising the matter, Justice Alito seems  to rely on matters noted by Justice Breyer not to have been before the Supreme Court.  The majority opinion observes, in a footnote:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral.” (emphasis added)). . . .

It is up to the petitioner for certiorari to do what Mr. Snyder evidently did not do. Unfair, perhaps, but here it serves to emphasize and give some flesh to the statements in the majority opinion as well as in the concurrence that the majority opinion is narrowly limited to the facts before the Supreme Court.

Blackfive:

This is a tough decision (and one which I grudgingly concede until I can read the actual decision) which is only tempered if you believe that there is a special place in hell for the Phelps family.

Also, please remember that these protests are stunts in order to evoke a visceral reaction from normal Americans in order to sue them in court and receive funds which keeps bread on the Phelps family table. Do not engage these horrible disgusting animals as that is exactly what they want.

Scott Lemieux at Lawyers, Guns and Money:

It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

Andy Barr at Politico:

Sarah Palin voiced disappointment with a Supreme Court decision Wednesday protecting the First Amendment rights of anti-gay protesters at military funerals.

“Common sense & decency absent as wacko ‘church’ allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square,” Palin tweeted .

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