Today the Supreme Court decided Snyder v. Phelps. I will post commentary here as I read through the opinion.

The Supreme Court affirmed the 4th Circuit 8-1, finding that Snyder (father of the slain Marine) cannot recover from the Westboro Baptists.

Chief Justice Roberts’ Majority Opinion

The Court held that “the First Amendment shields Westboro from tort liability for its picketing in this case.” Justice Alito, who was also the lone dissenter in U.S. v. Stevens, dissented in this case. Justice Breyer filed a short concurring opinion.

The Court found that “[t]he ‘content’ of Westboro’s signs plainly relates to public, rather than private, matters. Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” “[S]peech on public issues occupies the ‘“highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Deciding whether speech is of public or private concern requires us to examine the “‘content, form, and context’” of that speech, “‘as revealed by the whole record.’” Dun & Bradstreet, supra, at 761 (quoting Connick, supra, at 147– 148). The placards highlighted issues of public import—the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving the Catholic clergy—and Westboro conveyed its views on those issues in a manner designed to reach as broad a public audience as possible. Even if a few of the signs were viewed as containing messages related to a particular individual, that would not change the fact that the dominant theme of Westboro’s demonstration spoke to broader public issues.

Westboro may have chosen the picket location to increase publicity for its views, and its speech may have been particularly hurtful to Snyder. That does not mean that its speech should be afforded less than full First Amendment protection under the circum-stances of this case.

Snyder also may not recover for the tort of intrusion upon seclusion. Westboro stayed well away from the memorial service, Snyder could see no more than the tops of the picketers’ signs, and there is no indication that the picketing interfered with the funeral service itself.

Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Mathew Snyder’s funeral, and itschoice to picket at that time and place did not alter the nature of itsspeech. Because this Nation has chosen to protect even hurtfulspeech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.

Interestingly, the Court declined to consider the online epic that Phelps posted to the Westboro Baptist’s Web site, partially in light of the fact that “an Internet posting may raise distinct issues in this context” citing Ontario v. Quon.

The Court also rejects Justice Alito’s attempt to analogize these signs to unprotected speech like fighting words or defamation.

3The dissent attempts to draw parallels between this case and hypothetical cases involving defamation or fighting words. Post, at 10–11 (opinion of ALITO, J.). But, as the court below noted, there is “no suggestion that the speech at issue falls within one of the categoricalexclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’ ”

The Court also focuses on the fact that the speech occurred on a public sidewalk.

But Westboro conducted its picketingpeacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983). “[W]e haverepeatedly referred to public streets as the archetype of atraditional public forum,” noting that “‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474, 480 (1988).4 4The dissent is wrong to suggest that the Court considers a publicstreet “a free-fire zone in which otherwise actionable verbal attacks are shielded from liability.” Post, at 10–11. The fact that Westboro conducted its picketing adjacent to a public street does not insulate thespeech from liability, but instead heightens concerns that what is at issue is an effort to communicate to the public the church’s views onmatters of public concern. That is why our precedents so clearly recognize the special significance of this traditional public forum

Chief Justice Robets closes with noting how narrow the opinion is, and how the Constitution protects repugnant speech:

Our holding today is narrow. We are required in FirstAmendment cases to carefully review the record, and thereach of our opinion here is limited by the particular factsbefore us. Speech is powerful. It can stir people to action, movethem to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stiflepublic debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Justice Breyer’s Concurring Opinion

Justice Breyer’s brief concurring opinion sought to express his limited reach of the Court’s opinion:

That opinion restricts its analysis here to the matter raised in thepetition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

However Justice Breyer uses an example to illustrate that states can regulate picketing (Justice Alito quoted this example in his dissent).

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketingon matters of public concern. See Frisby v. Schultz, 487
U. S. 474 (1988). Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmitto the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (“fighting words”).

Breyer understands the Court’s opinion to leave open options for the state to protect its citizens from such hurtful speech.

Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, evenin the most horrendous of such circumstances?
As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide privateindividuals with necessary protection.

Breyer would limit this holding, almost entirely to the Baptists:

Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Justice Alito’s Dissenting Opinion

Justice Alito’s solo dissent begins with an emotional appeal, focusing on the horrid speech from Phelps, noting that the funeral was not a public matter:

Our profound national commitment to free and opendebate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprivedhim of that elementary right. They first issued a pressrelease and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

Alito distinguishes between attacks in books, articles, and other texts from a protest at a funeral:

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a timeof intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions”permit recovery in tort for the intentional infliction ofemotional distress (or IIED). Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 53 (1988). . . . When grave injury isintentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

Justice Alito discusses the despicable strategy of the Westboro Baptists, including their recent places to protest the funeral of a 9-year-old girl slain in Tucson.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Alito rejected the majority’s argument that the signs related to matters of public interest, but rather were focused on Matthew Snyder in particular:

Since respondents chose to stage their protest at Matthew Snyder’s funeral and not at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. . . . In light of this evidence, it is abundantly clear thatrespondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyderbecause (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures,16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not.

Justice Alito discounted the ability of any time-place-manner neutral picket laws to eliminate the harm the Westboro Baptists inflict:

It is apparent, however, that the enactment of these laws is no substitute for the protectionprovided by the established IIED tort; according to theCourt, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante, at 11, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.

Here is his closing:

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.