The transcripts for Snyder v. Phelps are available here. I will post my comments as I read through the transcript.
Argument for Petitioner Snyder
Right out of the bat, Justice Scalia jumped over the attorney for Snyder, asking how the video “epic” posted on the Internet, and the protest at the funeral, were related. These were submitted to the jury as one cause of action, but Scalia sees them as separate events. This could suggest Scalia is more likely to find the funeral protest actionable, but limit it to those facts.
JUSTICE SCALIA: That’s fine, but it — it does not intrude upon the funeral. I mean, no. You either have two separate causes of action — one is the intrusion upon the funeral and the other is the harm caused by viewing this posting on the Internet — but I don’t see how they both relate to intrusion upon the funeral.
…JUSTICE SCALIA: Suppose there hadn’t been a funeral protest, just the epic. Would that have supported the cause of action you assert here?
…JUSTICE SCALIA: It’s his choice to watch them, but if he chooses to watch them he has a cause of action because it causes him distress.
JUSTICE GINSBURG: Well, why does he have a claim? As I understand it, after this case arose Maryland passed a statute putting time, place, and manner restrictions. I read that statute and it seems to me that there was nothing unlawful, nothing out of compliance with that statute, that was done here. It was at considerable distance. There was no importuning anyone going to the funeral. It stopped before the funeral, the service, began. Am I right that under the current statute this conduct was not unlawful?
JUSTICE GINSBURG: So it sounds like to you it’s the whole society, the whole rotten society in their view.
JUSTICE ALITO: Well, yes, but the signs say “you” and the argument is made “you” doesn’t mean Matthew Snyder; it means a larger group. And then you have the epic, which is directed directly at Matthew Snyder. Doesn’t that show — shed light on what “you” meant on those signs?
Justice Breyer: Now, those are the two questions that I am very bothered about. I don’t know what the rules ought to be there. That is, do you think that a person can put anything on the Internet? Do you think they can put anything on television even if it attacks, say, the most private things of a private individual? Does Maryland’s — does Maryland’s law actually prohibit that? Do we know it does, and what should the rules be there? Have I said enough to get you talking?(Laughter.)
JUSTICE SOTOMAYOR: All right. And under what theory of the First Amendment would we do that? What case would stand for, our case, stand for the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?MR. SUMMERS: Gertz v. Welch treated the public versus private figure status different, albeit-JUSTICE GINSBURG: That was defamation, wasn’t it?JUSTICE SOTOMAYOR: That was defamation. That’s false — truth or falsity.
JUSTICE KAGAN: Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this. It says: “Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views or perhaps on the basis of their dislike of a particular expression.”
Argument for Respondent Phelps
Justice Kagan: Suppose your group or another group or — picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or — or other offensive and outrageous things, and just follows this person around, day-to-day.Does that person not have a claim for intentional infliction of emotional distress?…MS. PHELPS: My answer, Justice Kagan, is: No, I don’t believe that that person should have a cause of action or would under your cases have a cause of action. You couldn’t give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case.
JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn’t be protected by the First Amendment.MS. PHELPS: We agree that fighting words are less protected under the First Amendment.JUSTICE SCALIA: Unprotected.MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social –JUSTICE SCALIA: Is that so? Do we know that?MS. PHELPS: I beg your pardon?JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.
This is a case about exploiting a private family’s grief and the question is: Why should the First Amendment tolerate exploiting this Marine’s family when you have so many other forums for getting -getting across your message, the very same day you did?
JUSTICE KENNEDY: That simply points out that all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young. Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact — the Justice Alito hypothetical in — in — in the grandmother case.So I — I think — I think your — your public concern issue may — may not be a limiting factor in cases where there is an outrageous conduct and where there should be a tort.
JUSTICE SCALIA: You think that’s solid, absolutely, what’s a fighting word, whereas what is an outrageous statement is very much different from what’s a fighting word? I don’t see the difference.Besides which, isn’t it the case that in order to recover for the tort of intentional infliction of emotional injury, you have to substantiate the injury with some physical manifestation, which the plaintiff here had?And my goodness, for fighting words, you don’t even need that. You can just say, these words angered me to the degree that I would have been inclined to fight. At least for this tort, you have to have physical manifestations.Why isn’t that a very objective standard?
JUSTICE GINSBURG: The Court has made that a very narrow category, hasn’t it? I mean, we have not allowed the fighting words — you say that to me and I’m immediately going to punch you in the nose, because it is an instinctive reaction. I think the Court has rejected spreading fighting words beyond that.
CHIEF JUSTICE ROBERTS: My question is, if he simply buries his son, is he a public figure open to this protest, or — or not?MS. PHELPS: I don’t know in the context of a war, if I can give a definitive answer to that. It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated. For two years this church