NINOMANIA

 Subscribe in a reader

:: Thursday, March 03, 2011 ::

More about Snyder

2nd day -- and I'm already projectile-vomit-sick of the phrase "even for the speech we abhor." As if that was the debate between the parties and within the Court:

"Gee, should we extend the 1st Amendment even to speech we abhor?"

"Naa -- why should we?

"Hey, let's! It'd be Enlightened! You on board, Alito? -- All right, be that way...."

I'll. Retire. To. Bedlam.

That the 1st Am protects "even speech we abhor" is a given. It was not even remotely contested by Mr. Snyder, or by any amici on his side as far I could tell. (Admittedly, I didn't read them all. If there was an appellant's amicus who argued that the 1st Am protects only speech the majority likes, I hope someone will point it out, so I can give that entity the Doug Piranha treatment: sarcasm, dramatic irony, metaphor, bathos, puns, parody, litotes, and satire.)

No, this case was argued on a simple point: since the Court had already held that the 1st Am bans the use of the tort of "intentional infliction of emotional distress" when the plaintiff is a "public figure," should that ban be extended to all IIED cases where issues of "public concern" are in play (Phelps's view), even when the plaintiff is not a "public figure," or not?

In the event, the Court said little about the "public figure"/"not public figure" distinction, and made the decision turn on whether the defendants, regardless of the outrageousness of their conduct and the "public"-ness vel non of their victim, were "discussing" (ha ha) an "issue of public concern." Thus, the Court fashioned a rule that leaves us wondering whether an IIED tort action can ever be maintained as long as the conduct complained of is part of the expression of a view on a matter of public concern. If Phelps's next stunt is to burn down Snyder's house, while his followers wave signs and chant slogans on issues of "public concern," is there any rule that says such conduct is not protected by the 1st Am? Not in Snyder v. Phelps there isn't. (H/t to colleague Prof. Louis Hensler for the hypo.)

Others are concerned that a Snyder victory here would have opened up to IIED liability certain vulnerable parties such as pastors who preach traditional Christian sexual morality, or pro-lifers whose placards say "baby-killers" or the like. There is no reason why such 1st Am conduct should be held hostage to the Fred Phelpses of the world.

We are assuming that the sermons and the placards are general, that they proclaim teachings, and that they do not name individuals, whose "space" they then invade. But let's change the facts and imagine that a pastor who advocates the age-old Christian and Jewish view that homosexual conduct is sinful takes the expression of this view to a whole new level and holds a demonstration outside a courthouse where Jim A. and Joe B. are having a civil union ceremony, and that they deploy anti-gay chants and placards using Jim's and Joe's full names.

Different ballgame, 1st Am-wise.

That doesn't mean Jim and Joe can automatically recover from this church group in tort. To prevail in an IIED suit, the plaintiff has to prove emotional damage with physical (not just emotional) consequences. That's hard to do, and rightly so -- and you know what? Albert Snyder had done it in the present case. And if Jim and Joe manage it in our new hypo -- well, I'm real sorry for the church group, but I'm especially sorry that they didn't ask me before they engaged in such lunkhead conduct.

Now, about the pro-life demonstrators with their "baby-killer" signs and chants. That's presumptively protected by the 1st Am. But it's been settled law since 1988 that local govt can ban home-specific demonstrations, as long as the ban is content-neutral and therefore fits within the criteria for time/place/manner restrictions. Quite correct, imo. I don't want to unleash the "suburbia debate" here, but as long as suburbia is with us, it seems obvious, and important, that a residential street is not the constitutional equivalent of a downtown street, town green, or public square. And even in those places, t/p/m restrictions can be reasonable. In a residential suburb, "not here, ever" is a perfectly reasonable t/p/m restriction, as long as it's content- and viewpoint-neutral. And the pro-life movement has been living under a modified version of this rule for 23 years and counting.

The range of what the Supreme Court and the nation considered "freedom of speech" under the 1st Am expanded during the 1960s -- but even so, O'Brien wasn't allowed to burn his draft card, given a speech-neutral statute that required him not to. Our notions of free speech today are robust enough, given Citizens United, and even considering Doe v. Reed, given the Alito concurrence (him again!) there. We didn't need to license the outermost outrages of Fred Phelps in order to protect freedoms we should all take for granted, and we are all sullied by thinking we did.

Labels: First Amendment, Phelps, Snyder

:: David M. Wagner 1:23 PM [+] ::
...

:: Wednesday, March 02, 2011 ::

Snyder v. Phelps: Alitomania

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. [slip op at 14]

No crap, Court.

Understatement can have comic effect, but that's not what Albert Snyder needed on this, the last, miserable day of his calvary that began with the officer's and chaplain's visit to his home announcing that his son, LCPL Matthew Snyder USMC, had been killed in Iraq, continued with the cult that calls itself Westboro Baptist Church picketing Matthew's funeral with signs and an internet "epic" (insert cultural decline lament here) that you can read about in the opinion (they were targeted at Matthew and his parents as well as at their Church and at the United States), and has now ended with the nation's highest Court announcing that the Constitution of the nation that the Westboro cult calls "the United States of Sodomy" means the cult wins and the Snyders lose.

Throughout this case I've been worried that if Mr. Snyder won, the resulting opinion might be such as to endanger wide swaths of speech, especially on college campuses. Mr. Snyder's theory of recovery against the Westboro cult was tort known as "intentional infliction of emotional distress" (IIED). It would be all too easy, thought I, if Mr. Snyder won, for various thin-skinned groups to claim that speech they disliked touched the elements of this tort. Sympathetic campus "health professionals" could always be produced to testify that the physical symptoms required by states for IIED tort recovery were present. And who knows, states might just drop the physical symptom element.

Instead, the Westboro cult won -- in a way that shows (thanks to Mr. Justice Alito's lone dissent) that Mr. Snyder could have won without harm to free speech. The opinion of the Court, Chief Justice Roberts writing, has at least the virtue of making it all but impossible for anyone to use the IIED tort ever again where issues of "public concern" are in some sense in the mix. That, in itself, is probably a good result. But on the unusual facts of this case it is also profoundly insulting to the United States as such, to the Marine Corps, and also other groups the Westboro cult goes after -- a "rainbow coalition" if ever there was one, literally including both the Catholic Church and homosexuals (what are these guys anyway, seminary inspectors? Leave that to the Holy See!!)

So I turn now to how Justice Alito slices, dices, fillets, and skewers the (Scalia-including) majority, in a manner rarely seen since Scalia did it in star turns such as his own lone dissents in Morrison v. Olson and Mistretta v. U.S.

The Court makes much of what it considers the dissent's mistaken attempt to shoehorn the Westboro cult's speech into one of the "traditional unprotected categories" of 1st Am law, such as "fighting words" or defamation (see its footnote 3). This is a strange misreading of the dissent. Justice Alito is plainly using those categories by analogy to what we do have here: speech that amounts to IIED, found to be so by a jury. Such speech is as unprotected as any other "unprotected category," unless the Court is interested in announcing a new rule abolishing the IIED tort altogether whenever the action that inflicts the harm consists of words.

Which it is not. It announces no such rule. Nonetheless, a fairly plain consequence of this decision is that the verbal IIED tort is now abolished whenever any of the words involved touch on issues of public concern, even if other words involved are of purely private concern, and even if it's the latter that do the inflicting. As Justice Alito explains:

First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 8. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently. [Alito, J., dissenting, slip op at 10]

The campus activists for whom I was concerned needn't have worried: they would be safe from IIED tort actions, even under Justice Alito's view, as long as they stuck to issue statements and refrained from disparaging references to the parentage, legitimacy, and prospects for eternal life of named non-public-figure individuals known to be on the other side of a given demonstration.

Justice Alito again:

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent. [Alito, J., dissenting, slip op at 14]

In general, free speech has been honored in the Roberts Court. Today it tried again to serve free speech goals, but did so dishonorably.

Labels: First Amendment, Phelps, Snyder

:: David M. Wagner 1:36 PM [+] ::
...