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Wednesday, March 2, 2011

Supreme Court Rules For Westboro Baptist Church

The U.S. Supreme Court, in an 8-1 ruling (Alito dissenting), ruled in favor of the right under the First Amendment for protesters from the Westboro Baptist Church to picket near the funerals of soldiers.

Here is a key piece of the Opinion, written by Chief Justice Roberts:

"The “content” of Westboro’s signs plainly relates tobroad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates theUSA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,”“Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App.3781–3787. While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues."  (p. 8)
The Court found the speech to be protected, and further found that such protection extended to public spaces, including public land near funerals:
"Westboro’s choice to convey its views in conjunction withMatthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. 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 picketingpeacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a "special position in terms of First Amendment protection." United States v. Grace, 461 U. S. 171, 180 (1983)." (p. 10)
The Court left open the possibility that there could be legislatively imposed, content-neutral, restrictions on picketing, but found that those restrictions did not apply in this case:
"Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach—it is "subject to reasonable time, place, or manner restrictions" that are consistent with thestandards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Maryland now has a law imposing restrictions onfuneral picketing, Md. Crim. Law Code Ann. §10–205 (Lexis Supp. 2010), as do 43 other States and the Federal Government.... To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional." (p. 10-11)
The Court stressed that the picketers kept far away from the funeral, and that the challenge was made based on the content of the speech, not the fact of speech near the funeral:
"The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpointof the message conveyed, rather than any interferencewith the funeral itself. A group of parishioners standingat the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.
Given that Westboro’s speech was at a public place on amatter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt." (p. 11-12)
The Court concluded:

"Speech is powerful. It can stir people to action, movethem 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 stiflepublic debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." (p. 15) 
Justice Alito dissented:
"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Mat-thew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace. But respon-dents, members of the Westboro Baptist Church, deprivedhim of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. [fn] The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree."

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  1. The court got it right. Alito's argument is interesting, but there is no ambiguity to the First Amendment.

  2. I recall the vicious arguments when the Nazis wanted to March in Skokie, Illinois, back in the mid-1970s. The town was home to a large Jewish population, many survivors of the Holocaust, which was why they chose Skokie. Ultimately the town lost their lawsuit to stop the Nazis from "assembling."

  3. After reading this I did some quick reading on 'Madsen vs Women's Health Center', 'Schenck v. Pro-Choice Network' and 'Hill v. Colorado'.

    It seems to me that there are some glaring contradictions in these past cases with the current decision. I feel that that protesting abortion is just as much of a 'broad issue of interest to society at large' as the issues the Justice described. It is has also frequently been done in a manner that does not specifically target the people going to the clinic or working at the clinic to the same extent that the Westboro Baptist Church is not targeting the families of the Soldier.

    The last paragraph you included is in agreement with 'Hill v. Colorado' to some extent, I have a feeling it was added for that reason. And I'm not sure about whether or not it conflicts with 'Madsen v. Women's Health Center' since it was a court order that prohibitted the protest and not a legislative act. But to me the opinion seems to clearly contradict 'Schenck v. Pro-Choice Network' which establishes a buffer zone around clinics and patients under the pretense that protests will block access to the clinic.

    I have no legal background, so I have to go with a common sense approach to analyzing these cases, but I thought my observations may be of interest.

  4. Yep. I hate it when bully's exercise their rights, but that's just life.

  5. The media should just ignore these jerks instead of giving them them the limelight.

  6. Alinsky wins again. Free speech has limits: when the free speech of a group or individual infringes upon the rights of another, then the limits have been breached. We have indeed made some choices about where we are going in our country, and civility and respect for the rights of others don't appear to matter, following that course; the majority of the Supreme Court demonstrates this in their ruling, IMHO. Justice Alito, I commend you.

    Pick the target: the families of dead soldiers. Freeze it: publish an article to make this a "public" event. Personalize it: mix political slogans with personal, hate-filled attacks. Polarize it: make it offensive to listen to, to witness, but yet permissible under the 1st amendment - and YOU are the hater if you try to shut that up. --Rule 13, Rules for Radicals implemented.

    Justified by precedent, the SCOTUS majority has nullified the rights of private individuals to satisfy the rights of a group. Eerily similar to "re-distribution of wealth" to me; to paraphrase Orwell: "some people's speech is more equal than others".

    "It's not personal, it's business." --Mobster's motto
    "The ends justify the means." --Communist motto


  7. The First Amendment bars government action. That is not the case here as it was a lawsuit for intentional inflction of emotional distress - a tort, which is a private action. Just because I am exercising my consitutional rights does not mean I am protected from any private wrongs that I cause.

    This is a dispute between two private parties, the First Amendment is not in play. The eight justices who found for Westboro need to go back to law school and re-read the Constitution.

  8. @obpopulus - Here's what the Court said about that: "The Free Speech Clause of the First Amendment—“Congress shall make no law . . . abridging the freedom of speech”—can serve as a defense in state tort suits, including suitsfor intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50–51 (1988)."

  9. Follow that logic to its inevitable conclusion... a mother sees her child mortally injured and I get in her face to berate her about it, saying such things your kid deserved it, etc. She has no remedy at law for my despicable conduct? It is after all only speech.

    I can exercise my constitutional rights but if someone is damaged by them,then I can be expected to be sued for my actions.

    What is the difference between the Westboro Baptist Church's conduct and yelling fire in a crowded movie theatre?

    Nothing as you can expect someone to be injured in either case.

    The majority needs a primer in constitutional law.

  10. Call me a heartless bastard, but I'm a slave to the obvious consequences of reality.

    I've always found IIED law to be a bunch of hooey. They depend upon the victim to CHOOSE to be offended. The same act of speech, when leveled at different targets, can cause different reactions, or none at all. Does not matter how vile the words may be in a reasonable person's opinion, no one can become offended without choosing to be. Because it is reasonable for the speaker to expect "no distress" as a possible outcome, it becomes very shady to "prove" intent.

    No, you can't expect someone to be "injured" in either case unless you ignore the definition of the word injured.

    Calling emotion equivalent to "injury" isn't a slippery slope, it's a cliff. An emotion is not quantifiable. "Just how sad did it make you?" They're not comparable between parties. "Were you as sad as Billy when your team lost this weekend?" Heck, they're not even reliably comparable within one person, hence "mixed feelings." Injury should be limited to persons and properties, period.

    Follow YOUR logic to the inevitable conclusion ... You'll be sued for injury any time a joke you tell stirs up "bad emotions," or any time you turn down a stranger asking for a date.

    There are a lot of idiotic jerks in the world. Suck it up and tune them out. It is necessary for mature adults to realize those opinions don't matter ... BECAUSE they're idiotic jerks! That may not be easy, but life's not easy. It is not a legitimate function of government to ensure we live life in a customized bubble to filter out whatever we deem offensive this week. Otherwise we'd have blasphemy laws by now. See how well those work out in the M.E. We shouldn't be clammoring for nanny government to protect our feewings no matter HOW badly someone attempts to hurt them.

  11. Alito ruled the right way, but for the wrong reasons. These are private funerals these creeps are protesting. Private family funerals of people who are not public figures. No amount of pretzel logic can demonstrate the family of fallen soldiers to be public figures. This is intrusion on a family's private grief. I think its an outrage.

  12. "Just because something isn't illegal, doesn't mean it's ok to do."

    Everyone knows this (we hope).
    But logically, there must exist things which are not ok to do, that does NOT presuppose they should be illegal.

    "a mother sees her child mortally injured and I get in her face to berate her about it, saying such things your kid deserved it, etc. She has no remedy at law for my despicable conduct? It is after all only speech."

    This is exactly right. Her remedy is that you're a jerk. And your neighbors know you're a jerk. And you'll be demoted to social pariah. And scorned and belittled in return. This is what SHOULD discourage Phelpsians. Not the threat of litigation, which shows only that the powers are out to get them. But the disdain of their fellow citizens, which should clue them in to how out of sync with common social values they are. That is what actually might change their hearts and minds.

    Even if you can't change their convictions, it's even MORE important you NOT criminalize their speech. If speaking like a jerk were illegal, it'd be a lot harder to identify all the jerks hiding in repressed obscurity.

    For the victim, whatever distress might occur should be mitigated by the outpouring of heart warming support from friends and neighbors; seeing their outraged rebuttal of the Phelpsians.

    Generally, these kinds of social reactions are tempered when there is already a law to deal with such things. Why get worked up? The government will take care of it. It's the same as we treat our elderly... why worry about taking care of grandma and grandpa in their old age? Social Security will take care of that. The poor? They've already got welfare checks... not our problem, amiright?

    If you want a BETTER remedy for social ills, ask the law to do LESS. The people who step up to fill the void just might surprise you.

  13. The majority stated that time and place restrictions on the speech might have been appropriate, but none were in place in this case. They also asserted that the state action against the speech was content based, rather than enforcement of time and place restrictions. I agree with obpopulus at 3:01 -- this speech content could have been published and announced in far more appropriate ways. The offense was confrontational disruption of the family's private grief ceremony. If there was ever a case to reprimand speech for the way it was said, rather than its content, this was it. The tort should have been seen as a reasonable time and place restriction, and it should have been upheld.
    It puzzles me that speech is so easy to restrict when it's election related speech (the most essential speech in the proper function of our democracy), yet so untouchable when it's curtailed to limit internet porn or reprimand abuse to grieving families.

  14. They just got the right to yell "faggot in a crowded theater" and then see if anyone less urbane then they will carry it out. It's like having open season declared on you. No other group or individuals have to withstand this constant verbal and often physical assault.

  15. The solution is not to make it "so easy" to limit internet porn and reprimand abuse to grieving families, but rather to make election related speech "so untouchable."

    Even if filed as a reasonable time and place restriction, it would not have been upheld... a public place near an event the protestors felt to be a valid object of their protest is not any more unreasonable than an anti-abortion protest on a public sidewalk near an abortion clinic, and medical procedures have significantly more legal privacy protections than funerals.

  16. Ah, but what about the Snyder's First Amendment rights? Do they not have the right to mourn in public without having this right infringed upon? Their funeral procession was a form of speech and they are entitled to have it protected.

    Does one group have the right to shout over and drown out another group?

  17. "If you want a BETTER remedy for social ills, ask the law to do LESS. The people who step up to fill the void just might surprise you."

    Yes! And while we're at it, let's enjoy creatures, including persons, for what they are, even appreciate them for what they're not, and scorn impulses to make creatures, including persons, what one wants of them.

    The singularity of individual creatures, of all kinds, is hazarded by modernity. This is the core deformity of the age. I think those creatures, however, will not suffer their own obliteration, which means modernity is a short-timer. This condition of the age has creatures anxious, but they should not be. Life is a message and the message is expansion. Expansion protects singularity.

    I'm glad the Westboro people won this SCOTUS decision. But it doesn't solve their problem, which is that their entire frame of reference is contractive. I think they will not learn that assuagement is the human response to anguish, for, they are not interested in being human. They represent neither the Church nor Christianity and IMO should be told, as occasion offers, to shut up and behave themselves, or better yet, laughed at very loud and long.

  18. "Alito ruled the right way, but for the wrong reasons."

    I think he made all the points you just did. If you didn't read his dissent, it's pretty solid.

    His criticism of WBC really does draw blood, it makes clear just how thoroughly loathsome they are far more than the sensationalist coverage does.

  19. Justice Alito's dissent succinctly responded to the Court's assertion in this case (the one which you quoted in the comments above) that the First Amendment "can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50–51 (1988)."

    As Justice Alito noted, "Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq."

    It was clearly noted in the opening sentence of Hustler v. Falwell, that both respondent and petitioner were public figures.

    "Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of [p48] privacy, libel, and intentional infliction of emotional distress."

    And, unquestionably Hustler turned on that distinction.

    "In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true."

    Therefore, on that basis alone, Snyder v. Phelps is factually distinguishable.

    I don't see, as one prior commenter suggested, a parallel to the limitation on free speech embodied in Holmes admonition in Schenck v. United States that free speech does not entitle one to shout fire falsely in a crowded theater causing a panic. That was obviously not Phelp’s motivation.

    However, I do think an argument can be made that a legitimate policy basis underscores the need to protect against the kind of intentional tortuous harm that the jury concluded was inflicted here.

    For Justice Alito, the test under this set of circumstances was whether the "conduct at issue caused harm that was truly severe," and, further, that it was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

    And as Alito also pointed out, Phelps had dropped any challenge to the facts meeting those standards, as alleged.

  20. In pondering the facts in this case I wondered what effect on the outcome might have taken place IF the private funeral of their family member were considered by some or all of the members of the deceased's family to be a religious rite?

    Would a competing religious group have free speech rights to do as WBC members did, display what they displayed, within view and in the proximate presence of a different religious ceremony? Hypothetically speaking, of course.

  21. "I disapprove of whay you say, but will defend to the ddeath your right to say it". That basically sums up my feelings on this issue. The folks at Westboro are a stain on religion, and they should be ashamed of their actions. There is more here: http://pacnwrighty.blogspot.com/2011/03/scotus-rules-in-favor-for-westboro.html

  22. The decision by the majority of the Court in this case focused its attention on the nature of the speech itself -- i.e., whether, on balance, the signs and utterances it constituted matters of public concern, and could, therefore, be characterized as "protected" speech. And in doing so, they had to consider the speech as a whole because, as they conceded, there were a few signs that were entirely personal – arguably aimed directly at Matthew Snyder, and therefore NOT expressions of "public concern."

    ”And even if a few of the signs—such as "You’re Going to Hell' and "God Hates You"—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues. (my emphasis added) Snyder v. Phelps, at page 8.

    To me that seems inapposite. This case did not involve "state action" or official process intended to either prevent or suppress speech, or to criminalize the speech after the fact.

    The case was merely a private suit for the recovery of damages for intentionally tortuous actions taken against an individual who was quite clearly not a public figure by any stretch of the imagination.

    What really seemed to trouble the Court was a perceived lack of a sufficient nexus between the actions (picketing) alleged and the harm complained of. They kept emphasizing, for example, that Matthew Snyder did not actually see the vicious signs during the funeral service itself, but only became aware of the hateful specifics afterward, such as by seeing them on TV.

    But why should that make any difference?

    As Bryer's concurring opinion strongly implies, had there been a bit more in the way of a factual connection of Phelp’s actions to the harm alleged (i.e., closer physical proximity of the protesters to the actual services) he might well have agreed with Alito, and he even suggested that others in the majority might have done so as well.

    Of course, in circumstances involving closer proximity, this case might well have become one more directly focused on examining what thin substantive remainder there might be to the "fighting words" doctrine originally embodied in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942)!

    Who among us can be sure how we would react to vicious, craven insults of these kinds, thrown in our face, while burying a child who had given his life for his country?

  23. So disappointed in the court's decision.

    Honestly, never thought the day would come when I'd stand with Alitio.

  24. The beauty is that by this ruling I am allowed to stand out side of their church during their service with signs saying "Christ disappoves of fake Christians."

  25. What intrinsically troubles me most about the majority opinion is the consequence of having thereby rendered to a virtual nullity, the law’s implicit guarantee of protection of deeply wronged persons, individuals who have been harmed at the hands of a vile and debased individual or group, particularly given that the case arose out of such a perversely strained interpretation of the greatest single constitutional commitment to the protection of individual rights in the history of mankind . . . our Bill of Rights.

    The primary thrust of the Bill of Rights (including up front and in particular the speech protection in the First Amendment), was intended to guarantee protection to individuals against the power of the State. Yes, the First Amendment speech protections must perforce protect not just individuals, but groups and other entities against one another as well, and it surely has and ought to continue to be such a shield.

    But that very first ringing guarantee, of protection of free speech, was tailored by its terms, first and foremost, for the protection of individuals, and was basically intended as a buttress against the power of the federal government (and by operation of the incorporation of the Bill on Rights through the 5th and 14th Amendments) against the power of any of the States, to either prevent utterances being made or published, or to suppress the repetition thereof, or to punish such utterances thereafter.

    That was not the case here. The case was merely a private suit for damages arising out of intentionally inflicted tortuous actions, some unquestionably aimed at an individual, Albert Snyder, who was not a public figure.

    In this case, the Court even noted in the majority opinion that the State itself had adopted a law intended to minimize funeral picketing (read that as "abridge") limiting, perhaps even further, the capacity of Phelps and his Westbrook cult of "followers" to intrude so offensively, even viciously, into the private lives of others, whilst claiming to squeeze under the protective umbrella of First Amendment guarantee of free speech. But because the State had not done prior to the picketing, the impact of that law obviously could not be taken into account.

    As noted above, not all of the communications were addressed to "matters of public concern." Some were quite personal. But because the Court considered them "on balance" to be addressed to the public concerns, this private individual, Albert Snyder, father of Matthew Snyder, was made instead to suffer an almost unimaginable indignity, all without any possible recourse, for merely wanting to bury his son with honor.

    Good God . . . that young man, Marine Lance Corporal Matthew Snyder, gave his life for our country!

    I say Sam Alito got it right.

  26. Harassment by religious extremist

    Jehovah's Witnesses instigated court decisions in 1942 which involved cursing a police officer calling him a fascist and to get in your face at the door steps,....this same JW 1942 court decision upheld infamous Phelps hate church in 2011
    Danny Haszard, more on this group

  27. "What intrinsically troubles me most ... (having nullified) the law’s implicit guarantee of protection of ... individuals who have been harmed"

    What troubles me most is your rush to redefine the word "harmed" when it is now politically convenient.... without thought of how any liberal grievance monger would later use that elasticity to shoehorn legitimacy into ever more absurd claims of victimhood. This is exactly why there's a "Human Rights" industry in Canada... where special interest groups are raking in punitive damages money while not spending a dime by using the government provided attorneys and investigators to effectively wage SLAPP campaigns for such offensive offenses as questioning gay marriage or insulting Islam. I highly suggest reading Ezra Levant's "Shakedown" for a step-by-step guide to exactly where this path leads.

    Speech which is not libel nor fraud, which does not create an immediate danger, no matter how offensive is protected for a good reason.
    Offended sensibilities does not equal harm. Period.