The Spectacle Blog

Did Alito and Military Families Lose the Case but Win the Argument?

By on 3.3.11 | 8:28AM

Jim Antle and John Tabin provide a good summary overview of the Supreme Court's 8-1 decision in Snyder v. Phelps. At issue is whether protesters have a Constitutional right to picket military funerals.

As you would imagine, most military service personnel, veterans and their families are dismayed by the Court's decision.

Military families can't understand why, as dissenting Justice Samuel Alito put it, they should be subject to "malevolent verbal attack[s]" when: (a) they are private citizens and not public figures; and (b) there are "almost limitless opportunities [outside of a private funeral] for protesters to express their views."

But while Alito may have lost this particular case, a close reading of the majority's opinion -- as well as Justice Breyer's concurring majority opinion -- show that Alito and military families may have won the argument.

That's because although the Court explicitly ruled that Westboro Baptist Church has a right to picket military funerals, and to express during its protests "vehement, caustic and sometimes unpleasant" ideas, it also implicitly upheld a private citizen's right to privacy, and to protection against "vicious verbal assault" and injury.

"Whether the First Amendment prohibits holding [the] Westboro [Baptist Church] liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case," wrote Justice John Roberts.

In fact, all nine justices agree that the First Amendment protects "speech concerning public affairs." Alito dissented, though, because in his reading of the case, Westboro purposely subjected private citizens -- the grieving family of deceased Marine Lance Corporal Matthew A. Snyder -- to vicious emotional abuse and assault.

This is significant because, as Alito pointed out, "‘most if not all jurisdictions' permit recovery in tort for the intentional infliction of emotional distress (or IIED)."

"This is a very narrow tort with requirements that ‘are rigorous and difficult to satisfy," he observed. And "although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here."

Moreover, "it is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech," Alito explained.

Justice Roberts and the majority don't disagree with Alito's contention that no one has a right to emotionally abuse and assault private citizens. They say, though, that IIED is not at issue in this case because

"Westboro's speech was at a public place on a matter of public concern." And, as such, "that speech is entitled to ‘special protection' under the First Amendment."

In a separate concurring opinion, Justice Stephen Breyer agreed, but said that Alito's concerns were not obviated by the Court's decision.

In fact, to the contrary: "As I understand the Court's opinion," Breyer wrote, "it does not hold or imply that the State is always powerless to provide the private individuals with necessary protection."

Roberts, meanwhile, said that the court's "holding today is narrow... The reach of our opinion here is limited by the particular facts before us... [We rely] on limited principles that sweep no more broadly than the appropriate context of the instant case."

It is clear that Roberts and Breyer narrowed their opinions to address the exacting scrutiny and criticism of Alito.

This helps to explain, I think, why the majority explicitly ignored a series of damning online Internet posts that Westboro published after Snyder's funeral.

These Internet posts (which the Court dubbed "the epic") are significant, because much more so than the signs on display during Westboro's funeral picket, they explicitly target Snyder and his family.

But as Alito observed, "the Court refuses to consider the epic because it was not discussed in Snyder's petition for certiorari."

Alito thinks that the Court's should have considered the epic, because, as he sees it, "The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress."

Regardless of who's right, one thing is clear: Without the epic, it is more difficult to argue that Westboro's speech was about a private citizen (Snyder) vice larger-scale public matters. So by excluding these Internet postings from consideration in the case, the majority helped to force a First Amendment "free speech" ruling.

Whey, Roberts even acknowledged that "given the foregoing [facts of the case] and the fact that an Internet posting may raise distinct issues [emphasis added], we decline to consider the epic in deciding this case."

It would seem, then, that the Court has upheld the right of people to peacefully picket a military funeral in accordance with reasonable time, place and manner restrictions. However, the Court has not upheld any right to intentionally inflict emotional distress on private citizens, even in the name of free speech.

Indeed, by the lights of this ruling, a "vicious verbal assault" on a private citizen is not a constitutionally protected right. And so, the next military funeral protest that more explicitly targets a deceased military service member and his family may yet be subject to criminal prosecution.

After all, if the facts of the case change, then so, too, may the Court's decision. That at least is what the Court has said in Snyder v. Phelps. We will see.

Of course, I wouldn't expect any dramatic departure from today's ruling anytime soon. First Amendment cases move slowly through the courts; and protest groups like Westboro tend to be smart and savvy. They see what they must do to pass constitutional muster and they act accordingly.

But at least in principle, if not in this particular case, Alito and military families seem to have won in the Supreme Court.

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