Instant Analysis: Oral Arguments in Snyder v. Phelps

October 6th, 2010

UpdateThis post has been corrupted. Please see the full post here.
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 also expressed some skepticism about his cause of action, noting that the Maryland statute, later enacted, was time,, place, and manner neutral
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 also seemed to jump all over the notion that the signs at the funeral were targeted at Matthew Snyder, rather than society as a whole:
JUSTICE GINSBURG: So it sounds like to you it’s the whole society, the whole rotten society in their view.