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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: 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.

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

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