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Alito vs. A Broadly-Construed First Amendment

By John Tabin on 3.2.11 @ 7:18PM

As this AP dispatch notes, Snyder v. Phelps, the funeral-picketing case that Jim noted this morning, is the second 8-1 case in two years in which Samuel Alito has been the lone dissent in favor of a narrower interpretation of the First Amendment. (The first was US v. Stevens, which concerned "crush" videos depicting cruelty to animals.) I agree with Jim that the question in Snyder, which mainly concerns the line between comment on "matters of public concern" and an attack on a private individual, is a harder one than the lopsided verdict might suggest. The opinions are fairly short; you can read and decide for yourself.

But in general, when the question is close, I'd rather err on the side of protecting enumerated rights. And while Alito's willingness to buck the consensus on broad First Amendment rights definitely has a salutory effect -- it forces the Court to define the limits of its rulings (both the majority opinion and Justice Breyer's concurring opinion clarify the ruling based on Alito's objections) -- this line in Alito's dissent really bothers me:

Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right.

This may or may not be an elementary right, but it isn't explicitly mentioned in the Constitution. (I suppose one could make an argument that this is a "retained" right under the Ninth Amendment, but Alito does not.) The rights to freedom of speech and peaceable assembly are quite plainly protected by the text of the First Amendment. Elevating what a Justice thinks is "surely" a right to the same level as an enumerated right comes uncomfortably close to the mode of argument that has led the Court to discover, for example, an unenumerated right to abortion.

View all comments (35) | Leave a comment

Bob R| 3.2.11 @ 7:35PM

"This may or may not be an elementary right, but it isn't explicitly mentioned in the Constitution."

Surely you don't believe our rights are restricted to those in the Bill of Rights.

Mike| 3.3.11 @ 11:00AM

What about Scalia.?

fwb| 3.2.11 @ 7:46PM

Whatever.

Madison and the writers of the 1st specifically stated that it was NEVER to control state governments. The Courts and everyone else should read the discussion on the Bill of Rights. The Framers of the BoR left the power over free speech, religion, etc to the state constitutions ON PURPOSE. We have NOT made things better.

What we have today has nothing to do with the Constitution, even under the 14th. We have nothing but lies created out of whle cloth by an aristocratic body not authorized to make such interpretations except in the minds of those brain-washed by our system.

I have no doubt about the final fate of those members of the Westboro Baptist Church. They shall be judged accordingly as will I.

BD57| 3.2.11 @ 8:20PM

FWIW, I think you're reading too much into it.

Westboro is a particularly vile group of publicity hounds. If their conduct isn't "intentional infliction of emotional distress," then there's no such thing.

kingsmill| 3.2.11 @ 8:29PM

Ridiculous analysis of Alito's dissent by Mr. Tabin.

Conservatives adopting the absolutist interpretation of the First Amendment is an intellectual devolution from the thought of Willmoore Kendall, Walter Berns, Irving Kristol and more recently Robert Bork and Richard Lowenthal.

Diane| 3.2.11 @ 8:31PM

Justice Alito stood up for decency in this case, as he did, all alone, regarding the monsters who tortured animals in order to sell videos to the deranged.

Who in their right mind could condone evil people disrupting the private funeral of a dead soldier with their vile actions? I've never heard anything so disgusting.

I'm not a conservative so I have disagreed with a lot of his decisions, but he's a truly good man in my opinion.

I don't believe for one minute that the founding fathers meant to protect such depravity.

JMSA| 3.2.11 @ 10:48PM

That's right: dissent for common decency.

Occam's Tool| 3.3.11 @ 1:03PM

How about the employers firing them for "egregious asshattery?" I would like a wrongful termination lawsuit brought by one of those church goers, so that the term can be legally defined, as they are the Living Definition of it.

Hook| 3.2.11 @ 9:07PM

I understand that the Westboro group which has been absurdly characterized as Xtian Fundamentalists by the MSM were over 1000 feet away and the family could neither see nor hear them.

One could argue that some things said about conservatives-and I am not talking about public figures-on MSNBC are just as noxious. The media frequently tells deliberate lies. At least these Westboro nutcases are saying what they believe. I also don't think this was much of a personal attack on the family and it is hard to see how the existence of such nutcases could cause emotional distress. Louis Farrakhan, it could be argued causes emotional distress every time he speaks. Alito's opinion bothered me and I am conservative.

to fwb: What you say seems a little out there.

Diane| 3.2.11 @ 9:18PM

No rights are absolute because they always bump into other rights. Rights should also be tempered with the notion of responsibility.

Lullabys, Legends and Lies| 3.2.11 @ 9:39PM

Who cares what this freaks say or do? Whenever they show up at a funeral, let's just shout them down, and slash their tires like they did the last time (and nobody saw a thing, not even the Police), sooner or later they'll just go away. Free speech is free speech, even for freaks like these.

David W| 3.2.11 @ 9:52PM

I understand the ruling but am not happy with it. I don't believe that the right to free speech was intended to cover a lot of things that it seems to cover now. However, something Walter Williams (black economist) said that I found interesting - a right is something that does not take from someone else. For example, health care is not a right because someone has to pay for it. If the person wanting health care can't pay, then someone else has to - thus not a right. Free speech is a right, but surely this type of speech takes away from the target of the speech. After all, is standing in front of President Obama's children and using the N word and dropping the F bomb protected free speech? Per this ruling I think it might be.

Maybe all we can hope for is some divine intervention for the so-called church members.

Lew| 3.2.11 @ 9:54PM

The majority opinion returns to the hands of the offended the task of stopping the offending behavior. What would you do if I screamed at your children that their mother is a who re? If I believe it to be true it is protected speech, right?
Speech has to have limits to preserve a civil society

Occam's Tool| 3.3.11 @ 1:04PM

No, you allow them free speech. You just freeze their assets, fire them from their jobs, refuse to serve them in restaurants, etc. Shun them.

Bhan999| 3.3.11 @ 3:00PM

What about requesting the police to file criminal charges against them for disturbing the peace?

Wouldn't that be possible? Why in the world was this case even brought to federal court?

Kingofthenet| 3.3.11 @ 5:45PM

Maybe they could sic Firehoses and Dogs on them too?

George S| 3.3.11 @ 12:42AM

Alito's dissenting opinion explains why the First Amendment cannot simultaneously offer protection to the Westboro mob while denying the same protection to a state flag depicting the Confederacy colors.

After reading the majority opinion of the court, my eyes came to a screeching halt when I read:

“[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” '

That sentence would have been put to a better use striking down McCain-Feingold.

Bob K.| 3.3.11 @ 1:30AM

Try doing this at a Muslim funeral and see what happens! The majority forgot to factor in the "diversity penumbra rights!" What if the Muslims killed some of them while screaming imprecations against their Christian Religion in response?

So, is this a kind of "hate" crime? What if the demonstrators assaulted the family while screaming these imprecations and somebody died? Would it also be a "hate" crime? Would the SC address an issue like this?

Does the 1st amendment freedom of speech make "hate" crimes unconstitutional?

Ain't it grand to sit up on that stand;
A SC Justice making laws for our land!

B1gdon| 3.3.11 @ 3:53AM

Those of you arguing for the dissent seem to be making up facts in this case. Most of the Phelpses are lawyers and they were very clever in how they staged their "protests". First, they were no where near the funeral, they were 1km away. That is ten football fields. That takes away the argument that they were actively interfering with a funeral. Also, they knew not to refer to the deceased or their family in any way.

At the end of the day this is basic protected free speech.

John Barleycorn| 3.3.11 @ 7:54AM

I trust Mr. Tabin would agree that this decision restores my right to yell "Fire!" in a crowded theatre?

TLS| 3.3.11 @ 8:44AM

Once heard from a great man who said that freedom wasn't absolute. Freedom doesn't give us a license to do anything we want to do. Instead, true freedom gives the right to do what we ought to do. Further, "When we abuse freedom, we step outside the boundary set by GOD, and we suffer the consequences."

Dan| 3.3.11 @ 8:50AM

You concede that there is a right to "peaceable assembly."

But then deny the full enjoyment of that right to "assemble" "peaceably" to those attending the funeral.

How can you say the right to "assemble" "peaceably" for the funeral was granted while simultaneously there was a "assemblage" designed for the EXPRESS purpose of making sure that there was no "peace" during the funeral.

If the Westboro creeps want to rant and rave, no one is preventing them doing so. BUT they've no reason to believe that the rest of us should honour and respect their right to disrupt a funeral.

TIME and PLACE for their gathering needn't necessarily be DURING the funeral.

AlexCH| 3.3.11 @ 8:50AM

I have to say: "simply put" JMSA!!

Dan| 3.3.11 @ 8:51AM

The idea that the Westboro creeps need to be indulged in their deliberate and purposed disruption of a funeral, otherwise our Constitutional rights are infringed, is a level of intellectual and legal sloppiness sadly not uncommon over the last 40 years.

Dan| 3.3.11 @ 8:54AM

However, having sad the foregoing, the response to the Westboro types is not legallly. They should have been dealt with exactly as our forefathers would have dealt with them, 2 by 4s and baseball bats.

And after one short attempt to disrupt the funeral of one of America's finest, they would have been so dealt with we've never heard of them again.

The Court, and overly refined intellectual types are apt to wax on about "robust" and "vigorous" speech. So be it. Let then the FULL consequences of such "speech" play itself out before them.

Let those proposing such stuff see it all.

Kingofthenet| 3.3.11 @ 5:54PM

What consequences? Going to jail for Assault?

Eric Cartman| 3.3.11 @ 9:40AM

The Snyders are not a politician, company, political group, movie star, shock-jock, or even a political notion. They are a private people conducting a solemn ceremony. There is a difference. You can't get to stand outside your neighbor's house yelling stupid crap all day. That's that.

Derek Leaberry| 3.3.11 @ 10:27AM

For an interesting and correct view on the Westboro case, conservatives may find Thomas Fleming's essay at the Chronicles website a superb attack on the dastardly Supreme Court decision.

JP Stapleton| 3.3.11 @ 10:44AM

Does one really need to have the "right to bury one's dead" enumerated in the constitution??? Please! The Constitution, specifically the Bill of Rights, is intended to protect private citizens from government action. While the first amendment prohibits the government from passing laws that limit free speech, that is not what has happened in this case. The tort of intentional infliction of emotional distress does not preclude speech, it simply says that you can speak all you want, but if you do it in a way that brutalizez innocent victems who have nothing to do with what you are "speaking" about, then you might have to compensate that person for the harm you caused.

You can't yell fire in a crowded theater. Alito's dissent actually pays attention to the FACTS of the case, which is important. The majority opinion largely ignores the facts.

I am for the free speech as much as the next person. But your right to free speech should not be allowed to trump the bounds of human decency as it does in this case. The exercise of rights is not without responsibility. If you exercise your rights in such a way as to cause great harm to another, you must be held responsible. Wake up people!!

John Carnal| 3.3.11 @ 11:52AM

It is most distressing that a supposedly "originalist" Supreme Court justice uses the word "right" so loosely. Can emanations and penumbras be far behind? Justice Alito, a grieving parent certainly has a justifiable expectation that all members of the society his son gave his life to protect would respect that sacrifice. Justifiable expectation is not the same as a right.

Casey Abell| 3.3.11 @ 11:55AM

In fact, the decision let stand the Maryland ordinance which prohibits picketing within a certain distance of a funeral. The Westboro bunch is vile, but they obeyed the law.

More than obeyed it, in fact. They were about 1,000 feet from the church. Of course, they chose the day of the funeral to get publicity, and they got it. But the court was not willing to give the hate speech crowd a very powerful toy to play with.

There are plenty of protections to take care of loons who stand in front of your house and yell obscenities...laws against disturbing the peace, etc. But scumbag Phelps and his repulsive clan were peacefully picketing, well away from the funeral, to express (yes, disgusting and evil) opinions on public issues.

I don't want that banned. And Alito's backdoor "purely personal attack" argument to regulate speech on public issues is frankly scary to me.

MikeN| 3.3.11 @ 12:34PM

Does that mean the Left will stop calling him Scalito? Or is being a Scalia clone only an accusation to be leveled at black Justices?

MikeN| 3.3.11 @ 12:35PM

Seems to be this case should never have gone to trial. The police should have stayed away and then let the military deal with the protesters.

Casey Abell| 3.3.11 @ 1:01PM

Doesn't surpise me that Alito was a lone dissenter. All the other justices, of every political stripe, saw a hate-speech nightmare coming their way. Sorry for the cliche, but hard cases do make bad law, and we dodged some really bad law here.