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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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    :: Monday, May 09, 2011 ::
    Stevens agrees with Alito on Snyder; Alito still right anyway

    Above the law: Retired Justice Stevens says he would have joined Justice Alito's dissent in Snyder v. Phelps -- the Westboro Baptist/Marine funeral "picketing" case.

    Actually, I don't care much for the concept of "verbal assault." Almost all "verbal assaults" are, and should be, protected by the First Amendment. On the other hand, it was settled law until Snyder that "fighting words" were not protected by the First or any other Amendment.

    Snyder was not decided as a "fighting words" case -- rather, Mr. Snyder had proved to a jury the numerous and difficult elements of the "intentional infliction of emotional distress" tort, and the Court said, tough, as long as the tortious conduct involves expresses opinions on an "issue of public concern."

    But consider. In Chaplinsky, the original -- and progeny-less -- "fighting words" case, the "fighting words" were "G__-damn racketeer" and "damned fascist." (An "issue of public concern," btw, especially in 1942.) The Phelps cult's words were obviously way more "fighting" than that, especially given the circumstances.

    So make no mistake: the Court has abolished the "fighting words" doctrine, even as it gormlessly avoided admitting it was doing so.

    Chaplinsky is still nominally good law; but then, so is Plessy. The difference is that while no one regrets the de-facto loss of Plessy, Chaplinsky was kept around because we all kind of sensed that the First Amendment doesn't protect "speech" that's of extremely low value to political discussion; and speech that neither does nor is meant to do anything but inflame is as low-value as you can get, except maybe for obscenity, which is just another type of discussion-impeding inflammation.

    H/t: Will Wilson

    :: David M. Wagner 5:57 PM [+] ::

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