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.
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