March 2, 2011

The Westboro Baptist Church wins in the Supreme Court in the case about protesting at a soldier's funeral.

"The First Amendment shields Westboro from tort liability for its picketing in this case."

Chief Justice Roberts writes the opinion, with only Justice Alito dissenting. Justice Breyer has a concurring opinion. From the Roberts opinion:
The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence....

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995)....

Speech is powerful. It can stir people to action, move them 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 stifle public debate. That choice requires that we shield West- boro from tort liability for its picketing in this case.
Clearly, this is the right outcome.

AND: Alito, the lone dissenter, stresses the value of the tort called "intentional infliction of emotional distress":
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.
Breyer's short concurrence makes the point that the decision is limited to in-person picketing about matters of "public concern." In adding that the Court "does not examine in depth the effect of television broadcasting" and "internet postings," I get the sense that he's looking ahead to cases about bullying.

125 comments:

I'm a Shaaaaark said...

Damn that leftist democrat Phelps and his gang of jerks.

MadisonMan said...

I can't say I like their activity. I'm glad they are allowed to do it however.

Shanna said...

The proper response to somebody protesting and making noise at a funeral is a punch in the face, not a lawsuit.

The Drill SGT said...

right decision

nasty group

Rumpletweezer said...

They have every right to do what they do. Do we, as a society, have any obligation to make it easy for them to do it? If I own a gas station and refuse to sell them gas, is that my right? If I do auto repair and refuse to repair their vehicles, is that also my right? It surely won't stop them, but it will at least inconvenience them.

Fen said...

"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 West-boro from tort liability for its picketing in this case."

I didn't see anything in the ruling re "fighting words"

Funerals are for the living. If the Law won't protect grieving families from this nonsense, then its time to play with IEDs.

GMay said...

It's sad but true this is the correct ruling.

Then again, I support setting a maximum fine of $50 on anyone who beats the shit out of those protesters. I'd gladly pay up.

GMay said...

Hell, I'd pre-pay.

I'm a Shaaaaark said...

Hell, I'd pre-pay.

That would make a great Gift Card idea.

wv: Trang - official drink of the Vietnamese Space Program

Stan said...

Unpleasant speech is specially protected unless the speech is directed at a politician up for election.

TosaGuy said...

How about we go up to them and blow whistles in their ears.

tim maguire said...

I'm not so convinced this is the right ruling. They weren't petitioning the government for redress of grievances, they were harassing a grieving family and purposely disrupting a private ceremony.

I don't see where the first amendment enters into it at all.

Rumpletweezer said...

Dennis Miller says that when that guy dies he'd like to set up a carnival across the street and run the Tilt-A-Whirl.

peter hoh said...

This was the guy who sued them for inflicting intentional distress, correct?

If Breyer is looking ahead to cases involving bullying, I have to wonder whether this case couldn't have been viewed as such, too.

MadisonMan said...

How about we go up to them and blow whistles in their ears.

Works for me -- but they're probably cordoned off for protection and you'd not be able to get close enough.

Bagpipes would work better.

peter hoh said...

Or do bullies get a pass so long as they carry signs that have some connection to some matter of "public concern," however tenuous?

ricpic said...

Alito seems to be in favor of freedom of speech up to the point at which speech creates "great injury." Which means he's not in favor of freedom of speech.

Harsh Pencil said...

Jonah Goldberg has used this case as an example of the overlawyering of America, or the demise of more informal ways of doing things.

In the past, if someone like Phelps held up "God hates fags" signs near a Marine's funeral, a group of men from the funeral would have simply gone and beaten him up. And (and this is important) the cops would have looked the other way, figuring the guy had it coming. But now, everything is lawyered up. There is no unofficial code and no unofficial enforcement. There may be a gain to this, but there is also a loss.

NotYourTypicalNewYorker said...

A nasty group indeed.

I'm a Shaaaaark said...

Alito seems to be in favor of freedom of speech up to the point at which speech creates "great injury." Which means he's not in favor of freedom of speech.

Or, he sees this not as an expression of first amendment rights, but as harassment, maybe?

Just a thought.

lyssalovelyredhead said...

I really can't say enough about the bunch of fucking assholes that make up the Phelps group. But this is a win, for freedom. I'm highly disappointed in Alito. (See Ricpic's 10:00- he doesn't believe in free speech if it has limits).

- Lyssa

Hoosier Daddy said...

If Breyer is looking ahead to cases involving bullying, I have to wonder whether this case couldn't have been viewed as such, too.

I'm a bit fed up with the 'bullying' hype too. I was mercilessly bullied in grade school right up to the point that I got fed up one day and the bully got a broken nose and a split lip. I got suspended from school but amazingly I was never bullied again.

A similar tactic would work with these people as well.

Econophile said...

Rumpletweezer said: ... It surely won't stop them, but it will at least inconvenience them.

Good point. This has always been an important but often overlooked counterpart, in my mind, to (rightfully) not prohibiting obnoxious expression.

Chip Ahoy said...

Paint ball drive-bys.

John Burgess said...

Rumpletweezer: Forget the carnival. I want posters of Phelps and his clan blowing barnyard animals.

I'm a Shaaaaark said...

Breaking - 2 U.S. Soldiers Killed in Shooting at Frankfurt Airport

lyssalovelyredhead said...

The bullying angle is interesting to me. I've often wondered about it. For example, one of the issues that comes up a lot in bullying of girls (for example, the case of that Irish girl who killed herself) is when they are called "sluts" or similar.

Now, I'm not defending calling teenaged girls sluts, but isn't it a necessary element of free speech to be able to proclaim someone's behavior as "slutty"? It seems to me that it is. (I don't want to get into what actually constitutes being a slut, since everyone's definition of that differs, particuarly in the case of teens, when almost everyone has a moment or two where they would meet someone's definition of it.)

Would it be OK to make a first amendment exception to cases where a minor's feelings would be hurt? (I say no.) Would it, under Bryer's concurrence, be protected to criticize, say, Milie (sp? - OK, I'm glad I don't know it) Cyrus for sluttiness, but not the 17 year old girl down the street? (Again, I say no- there's no public interest modifier in the 1st Am.)

- Lyssa

MadisonMan said...

Breaking - 2 U.S. Soldiers Killed in Shooting at Frankfurt Airport

Two people were killed. No info on who they were. Shots fired near a bus carrying soldiers. Kosovan in custody.

chuck b. said...

Isn't "slut" defamatory? Celebrities win lawsuits against tabloids for saying they're gay. Is that more/less defamatory than assertions of sluttiness?

chuck b. said...

I guess slutty seems like a plus, these days.

traditionalguy said...

What fun the anti-Christians will have with this one. It is a misnomer calling what is really the Fred Phelps Hate Cult "a Baptist Church". The Fred Phelps Hate Cult is like a plant and a trouble maker using a common Christian name that it has not earned. What Fred really hates is Christianity.

Fred4Pres said...

The first amendment should trump the tort claim, at least on these facts. The mischief the other way would be worse.

chuck b. said...

"using a common Christian name that it has not earned"

haha Yes, Christians are the real victims here. :)

Mike Smith said...

As a point of information regarding "affiliations," Fred Phelps is a Democrat and has run for office on the D ticket in Kansas. He was a Gore delegate to the Democratic National Convention.

Kevin said...

Does this mean that the concept of "fighting words" is completely dead? I don't think it could apply to any situation more than this.

Or does it mean that the "fighting words" doctrine always meant something else to lawyers than to lay people, and I just misunderstood what it was there for?

lyssalovelyredhead said...

chuck b. said: "Isn't "slut" defamatory?"

I'm sure that it's arguable, but I don't think so, at least in most cases. My reasoning is that some people think that it is stepping over the lines of proper sexual conduct (i.e. "slutty") to, say, flirt openly or let a fellow put his arm around you*, while others would limit it to having multiple sex partners.

Either way, I think the defamation issue is moot in most cases simply due to truth as a defense. In most of the bullying issues I've heard about, it seems like the bullied girl did actually do the things that she was accused of (again, thinking of the Irish girl case- wish I could remember her name, Phoebe something- where the girl actually did sleep with someone's boyfriend or something).

* When I was in 10th grade, my boyfriend and I were called into the gym teacher's office because he had his arm around me, violating the "public displays of affection shall be limited to holding hands" rule. The gym teacher told me that if people saw him putting his arm around me, they would think "things" about me and would think that just anyone could do that. I kid you not.

- Lyssa

traditionalguy said...

Chuck b...Yes, the public demonstrations of hate by the Fred Phelps cult are first designed to discredit Christianity. The innocent victims among the mourners are made to look good by enduring clearly false attacks aimed at them by Fred Phelps. So who does suffer a discredited reputation from Fred Phelps activities?

David said...

"In adding that the Court "does not examine in depth the effect of television broadcasting" and "internet postings," I get the sense that he's looking ahead to cases about bullying."

Or just good old fashioned censorship.

David said...

ricpic said...
Alito seems to be in favor of freedom of speech up to the point at which speech creates "great injury." Which means he's not in favor of freedom of speech.


Amen.

And we all know who gets to decide what a "great injury" is, right?

David said...

"The gym teacher told me that if people saw him putting his arm around me, they would think "things" about me and would think that just anyone could do that."

Well, could they? Huh? Huh? Could they?

You might have been an armomaniac.

madawaskan said...

This is Patterico:

Don’t misunderstand what the ruling says. It does not involve a criminal statute and it does not rule that time, place, and manner restrictions on such picketing are unlawful — in fact, it reinforces the time-honored principle that such restrictions can be lawfully imposed. All the Court is saying is that when the protestors stay within legal strictures and are speaking on a public matter, they cannot be sued for a tort like intentional infliction of emotional distress.

Ya IOW I think sleeping over night in the Capitol is out...

Just sayin'.

Basically the Virginia AG has got the answer with the distance and other confinements of the Westboros.

Pastafarian said...

OK, can someone explain to me why they're allowed to scream "Your dead son is in Hell" at a young soldier's funeral, and yet every single time I inform members of the Colorado Avalanche hockey team about their dead mothers' sexual proclivities in the underworld, I'm hauled off to the pokey for disturbing the peace?

Is there no such thing as "fighting words" anymore? Obviously, we need to protect freedom of speech, but it's never been absolute -- fire in a theater and all that -- and I thought that one of the few exceptions we made was for someone verbally assaulting another person with intolerable insults that would provoke a reasonable person to violence.

madawaskan said...

I'm a Shaaaaark

WTH? Frankfurt?

Off to check that out.

EDH said...

Haven't read the decision yet.

Was it a requirement that the "picketing... [be] conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church"?

Did the court view that as a constitutional, content-neutral, time-manner-place restriction on free speech?

Almost Ali said...

Alito dissenting.

Alito, dissenting?

Does it really matter? No.

But why "Alito"? Are they drawing straws?

EDH said...

Thank you, madawaskan, for anticipating my question while I typed it.

Fen said...

I imagine that if protesters were surrounding a Mosque shouting "Mohammed was a pedophile!" the ruling would be much different.

The Drill SGT said...

@MadisonMan said...
Bagpipes would work better.


a Liberal I like. Perhaps "Scotland the Brave"?

BTW: I don't think it was certain that those guys in Frankfurt were soldiers. More likely they were "servicemen" or "airmen".

just saying...

lyssalovelyredhead said...

Pastafarian: can someone explain to me why they're allowed to scream "Your dead son is in Hell" at a young soldier's funeral, and yet every single time I inform members of the Colorado Avalanche hockey team about their dead mothers' sexual proclivities in the underworld, I'm hauled off to the pokey for disturbing the peace?

It's not what you're saying, hon, it's that you do it while wearing that loincloth of yours on breezy days. You know I love ya, but, really, it's time someone told you that people just don't want to see that.

- Lyssa

madawaskan said...

EDH

I really like the Virginia AG Cuccinelli he's been taking a smart tack on these-"people" all along.

Give this guy some time-I think Cuccinelli has real potential.

MadisonMan said...

Bagpipes are something I want to learn how to play. But the cost is a little prohibitive yet. Maybe when the kids are out of college and I have more disposable income. In the next 7 years I'll have none.

We got our first financial offer yesterday -- what a joke. Daughter would leave college with $100K in loans to pay off and we'd still be paying about $20K/year. First year we almost have covered.

I can't think that $59K for an education is a value worth pursuing. I just have to figure out how to craft a rejection letter to that particular school.

lyssalovelyredhead said...

Re: fighting words- Somewhat ironically, the reason that fighting words is not an argument is that, well, no one's fighting. Police are only able to break up issues involving fighting words to keep the peace- it doesn't go to tort liability later on. As long as everyone's remaining civil (in action), there can't be a fighting words issue. (I realize that's not fair, it's like the thing where a certain violent religion gets people tippytoing around it, while they piss off the non-violent religions all they want, but it is what it is.) (I don't like it anyway.)

Anyhow, it couldn't apply in this case, because the Plaintiff didn't know about the protests until later, when he saw them on TV. He had no ability to start a fight even if he were inclined at that point.

- Lyssa

The Drill SGT said...

I just have to figure out how to craft a rejection letter to that particular school.

shouldn't you start with: We have a better offer?

failing that: we're done a cost benefit analysis and have determined that accepting your offer with anything less than xx in support, would be less than optimizing.

The Drill SGT said...

MadisonMan said...
Bagpipes are something I want to learn how to play


I think the point is that for a Phelps counter-demonstration, you want a bad bagpiper don't you?

edutcher said...

This is why I've come to believe a lot of lousy law comes out of SCOTUS.

PS Love your WV, Shaaaark

Bob From Ohio said...

"But this is a win, for freedom. I'm highly disappointed in Alito. (See Ricpic's 10:00- he doesn't believe in free speech if it has limits)."

Yeah,freedom. Freedom to harass innocent people. Freedom to shake down local governments.

Ricpic and you are wrong. There are quite a few limits on the First Amendment already. One here would be far more justified than some of the others.

My opinion of Alito just went up. He realizes this is the real world, not a law school exam.

Fen has the right idea. If the courts won't help, self-help is needed.

Don't Tread 2012 said...

I think its instructive that we have folks all fired up regarding these detestable 'church' people and their right to protest at funerals.

As distasteful as that is, many of these same folks don't bat an eye at the fact that 60% of black children are terminated while still in the womb at the willing hands of Planned Parenthood.

Priorities!

Triangle Man said...

DIY LRAD

Alex said...

I fail to see how this is a 1A issue. This is one group of private citizens harassing another. Government is not being petitioned here. So it's perfectly acceptable for a community to say that funerals can't be picketed. Roberts - what's wrong with you man???

Alex said...

Anyone who favors this decision hates America, the military and common decency.

Alex said...

BTW this proves Roberts is a big phony Trojan Horse.

lasckbounce said...

For:The Drill Sgt

WTF ---Soldier, serviceman, airman --They all put their hands up and stepped forward. Uncle Sam and the American people got their names on a blank check -- for many the ck was for the full amount.

Then again I may have misunderstood ur comment. I salute all who serve regardless of the nature of that service.

Joe said...

Alito's reasoning is surprising and dangerous. In this case, the lines are pretty clear, but what about those cases where one person or group isn't so obviously the villain? Using Alito's logic, simply claiming emotional distress would let you sue the hell out of anyone and put a quick end to free speech.

Free speech can hurt. A lot. But that's the price to pay for all the benefits it gives us.

(Which side in Wisconsin could claim to be the victim with this idiotic theory of free speech? The teachers for being picked on or for those on the opposite side?)

And, for the record, I think there are way too many exceptions carved out of the first amendment. In many cases, such as fighting words, the error is to restrict speech and not punish the behavior. I do not like the creeping back excuse of "well this may happen so we should stop it early."

lyssalovelyredhead said...

Bob from OH: Ricpic and you [me] are wrong. There are quite a few limits on the First Amendment already. One here would be far more justified than some of the others.

Sorry, but no. There are too many limits on the First Amendment already. You are demanding that this be added as an exception because it distresses you. I don't blame you (and I would support those who turned to self-help- one non-violent measure of self-help is being offered by the wonderful Patriot Guard Riders, for example.)

I don't blame you (and others) for being distressed by this. These folks are monsters. You know who else are monsters? Nazis, KKK marchers, black panters, weathermen. We allow them to speak.- Why?

There's a reason why- When someone starts deciding that certain types of speech are off-limits because they hurt someone's feelings (no matter how justified those hurt feelings are), they are deciding that free speech is only acceptable if it does not hurt.

And they are missing the entire reason that free speech is necessary- because it can hurt. It can hurt tyrants, rulers, and wrongdoers. If someone is sitting in judgment of the speech, deciding who should be protected from hurtful speech, they can use that against you when you feel strongly about something unpopular, too.

Fen's hypo (although he wasn't using it with this intention) about shouting about Mohammud to a Mosque is insightful. Might it hurt someone's feelings when you criticize Islam? Sometimes it does; sometimes it must.

Do you trust the government, or a jury of 12, to decide whether or not your speech is too hurtful (to the right people) to be allowed?

I certainly don't.

- Lyssa

Alex said...

Fen's hypo (although he wasn't using it with this intention) about shouting about Mohammud to a Mosque is insightful. Might it hurt someone's feelings when you criticize Islam? Sometimes it does; sometimes it must.

Nobody will do that because we know with 100% certainty that Muslims will be violent in response. Christians just take it on both cheeks and up the ass with nary a whimper.

chuck b. said...

"The innocent victims among the mourners are made to look good by enduring clearly false attacks aimed at them by Fred Phelps."

I certainly agree with you. Also, the Phelps family's actions have aroused meaningful counter-protest.

The Phelps' don't do what they do because they care about people in a Christian way, and I don't think they're fooling anybody into thinking Christianity is bad. They want to draw attention to themselves, and apparently, make money as litigants. I've read stories about that anyway.

lyssalovelyredhead said...

"Don't Tread 2012: As distasteful as that is, many of these same folks don't bat an eye at the fact that 60% of black children are terminated while still in the womb at the willing hands of Planned Parenthood"

I'm not sure that I follow the connection that you're making between the two there. Could you explain? (I agree that the abortion rates are horrible.)

Marshal said...

"MadisonMan said...

Breaking - 2 U.S. Soldiers Killed in Shooting at Frankfurt Airport"

According to the NYT and most of the media the fact that the targets were members of a group generally identified with the right means the left's violent rhetoric caused these deaths. Barack Obama and the Wisconsin protesters should be ashamed.

madawaskan said...
This comment has been removed by the author.
Václav Patrik Šulik said...

My friends all warned me that if I voted for McCain-Palin, the President would appoint Supreme Court Justices who would side with anti-gay bigots, but did I listen? Nnnnoooooooo............

madawaskan said...
This comment has been removed by the author.
chuck b. said...

One more thing about "the public demonstrations of hate by the Fred Phelps cult are first designed to discredit Christianity"

I submit for your consideration that "Repent or your going to Hell" is itself sufficient to turn some people off to Christianity whether it is said on neon-bright placards at funerals, or very politely and earnestly.

Econophile said...

@lyssalovelyredhead:

Maybe he's referring to the thatsabortion.com billboard being taken down in NYC recently.

An article with lots of pictures(!):

http://www.dailymail.co.uk/news/article-1360500/Controversial-anti-abortion-billboard-New-York-taken-down.html

Bob From Ohio said...

I am sorry Lyssa but you are wrong.

Neither you nor I are harmed in the least by creating a narrow exception for disgusting "protests" at private funerals. Add soldiers if you like to make it more narrow.

There is nothing political about Phelps. Stopping him won't hurt anyone.

I'm a Shaaaaark said...

Just to update:

The U.S. Air Force says two of its airmen have been killed and two wounded in a shooting outside Frankfurt airport.

Spokeswoman Maj. Beverly Mock said German police have the suspect in Wednesday afternoon's shooting in custody and that she could not release any further details on the victims until their next of kin have been notified.

phx said...

As reprehensible as Westboro Baptist is, I prefer this ruling. The speech of reasonable people doesn't generally need protecting. This is the SC doing its job.

I don't believe anyone thinks Westboro represents Christians or organized religion in any way. I could be wrong but I think most of us who are atheists, agnostics, or disfranchised from organized religion understand that these people are a species unto themselves. Any problems I have with organized religion have nothing to do with Fred Phelps or his like.

madawaskan said...

If a country cannot allow the families 2 hours of peace to bury their war dead then maybe it is no longer a country worth defending.

2 hours of peace in a very specific time and place is curtailing the right to hold forth on public debate- I think not.

And the Westboro Baptsist made specific reference to a private individual.

You ask a lot of military families you ask them to endure more than you ever could.

Joe said...

Neither you nor I are harmed in the least by creating a narrow exception for disgusting "protests" at private funerals

My observation of history is that you are wrong. Carve out this exception, that creates precedence to carve out more.

In this case, the road to hell IS paved with good intentions. There is a reason the wording in the constitution is so absolute. Without it, we wouldn't even have what free speech we have today.

The Drill SGT said...

lasckbounce said...
Then again I may have misunderstood ur comment. I salute all who serve regardless of the nature of that service.


I think you misunderstood me. I understand what it means to pay full price.

40 years ago today, I was supporting Lam Son 719 hunkering down in a cold camp along the border listening/taping NVA phone taps.

This week my wife is on active duty.

I've been stationed in Germany, been through Rhein-Main many times.

My comment was two fold.
1. an aside that most likely the dead were USAF, not USA.
2. a dig at sloppy journalism that uses the term soldier to mean a lot of things and calls every vehicle with tracks, a tank.

The Drill SGT said...

and that she could not release any further details on the victims until their next of kin have been notified.

Oh, and how journalists that screw up the descriptions of the dead really fuck with the families.

somewhere, two USAF widows are going to be meeting CAO's, and they will be disturbed that the initial press was wrong and that their guy couldn't be dead, cuz he's not a soldier...

madawaskan said...

The AF was providing the transportation.

The passengers were primarily Army.

The bus driver was shot and two passengers.

Two dead , one critical.

Most likely the bus driver was an Airmen-but it looks like the others were Army.

I'm trying to follow it at der Speigel. I haven't checked up on it lately.

Getting conflicting reports on the shooter either from Kosovo or Macedonia.

cubanbob said...

Perhaps I'm old fashioned but doesn't the first amendment apply only to the government in the context of prior restraint? I believe the courts have gone too far under the rubric of the first amendment. As long as their is no governmental prior restraint then you are free to say what you want and are free to suffer any consequences your speech results in. If there are provable damages such as slander and libel then they should be adjudicated. The court went too far, the Phelps have blown past free speech are way past license. If you don't have the basic right to be born, how absolute can any other right be?

The Drill SGT said...

AP:LONDON – The U.S. Air Force in Britain says the two airmen killed and two others wounded in the Frankfurt airport shooting were based in the U.K.

A spokesman for Air Force at Lakenheath airfield confirmed all four were from the military base in eastern England.

madawaskan said...

Oh the journalist don't give a damn.

Remember when they showed footage of that guy getting dragged through the streets of Mogadishu....

OK-Shooter is from Kosovo.

Two airmen...based at RAF Lakenheath?

FOX News.

madawaskan said...

They were part of a security force on their way to a deployment, a military source told CNN, but it was not revealed exactly what their destination was.

UPI

jill815 said...

What else would you expect from a government with so little respect for the military that they'd name a navy ship for John Murtha?

It's just another slap in the face to those who keep us free.

lasckbounce said...

For the Drill Sgt

Got it!
Tks for your svc and your wife's
Regards,
From one vet to another

lyssalovelyredhead said...

Neither you nor I are harmed in the least by creating a narrow exception for disgusting "protests" at private funerals. Add soldiers if you like to make it more narrow.

There's no exception for groups that we really like and feel sorry for in the First Amendment.

The law has to be consistently applied to all. How can the First Amendment except soldiers any more than it excepts Muslims? Or gays? Or slutty teenagers? Or anyone else?

Do you want to be sued if you say those things are wrong? If Alito had carried this one, the door would be wide open to it.

Weapon said...

Wrong decision. Their free speech rights were never in jeopardy. Ever. The content was never questioned. Their mode of expression was never questioned. Their sincerity was never questioned. Only their choice of location. I'm pretty sure the 1st Amendment says nothing about location and a Founder Father would have had no problem with a restriction that respects the privacy and sensitivity of funerals. I hope we all remember this ruling when a member of the Westboro Baptist Church passes on. That their funeral be surrounded and crashed just as assertively as they have been crashing funerals by thousands of demonstrators chanting, "Love one another; as I have loved you. By this shall all men know that ye are my disciples, if ye have love one to another." Reverently, of course.

caplight said...

First, I have been where the WBC has picketed. A gay judge's funeral was at the church a block from where I work. Cops kept them on the other side of the street and opposite corner. In person it doesn't look as big as on TV.

Because I live here in Kansas I can tell you that we don't pay attention to them anymore. It is a cult made up mostly of Phelps members and relatives. I have seen the figure put at about 75 people.

They are attention whores and the more people fight with them the more they draw energy from the attention.

I affirm the SCOTUS decision because the slippery slope you go down eventually leads to American university speech codes and Canadian hate-speech tribunals. And "hate" will be defined by the "feelings" of some aggrieved person or group. Just one more way for liberals to control our lives in ways that feed their self-righteousness.

Godot said...

Chief Justice Roberts wrote:

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

It seems to me the bedrock principle underlying the First Amendment, is "Congress shall make no law ... abridging the freedom of speech"

Right decision nonetheless.

_

Cedarford said...

Generally Althouse does not like the words "homo" or "nigger" used, even as she supports broad free speech rights. But also holds that people that deliberately cause riot, mirrored in the classic "no right to yell "fire!" in a crowded theater, are not shielded by free speech.

So the situational context is free speech extends only so far as the behavior of the masses "accepts it". A violence veto exists.

We know that racists will not journey to the funeral of a dead civil rights leader and taunt the large black crowd in attendence with speech and signs like "Good riddance, black monkey!" "The only good nigger is a dead nigger".

Because there would be a riot and the racists arrested and taking full blame for the riot and any deaths or attendent injuries.
And if police saw them headed for a black funeral procession, knowing a race riot loomed, they would pre-emptively arrest the racists.


Similarly, some old fool muttering about how God hates Obama and how she hopes someone shoots him and Jesus will be happy when they do - discovered there were limits on free speech there, as well...as the Secret Service dragged her off for some interviews..

There is a violence veto.

In other words, free speech is defined to a certain extent by the willingness of others to tolerate it.

Phelps and followers would have got a different decision if family members insane with grief walked up to him and shot or clubbed several "Church" members.

Saying "niggers!" in public to a bunch of blacks is barred by potential riot and public mayhem. The violence veto is legally sanctified by government and courts. Blacks lack of "civility" over having "niggers" shouted at them limits the free speech of "nigger-shouters" in the eyes of authorities and the courts.

If flag burning had led to enraged mobs instead of polite civility, the wise lawyers dressed in robes, seeing dead flag burners, torched campuses....would have decided differently on that matter as well.

traditionalguy said...

Chuck b...I am sorry if you are a victim of some preacher's scare tactics. Many have heard preaching about the afterlife inside American churches starting with Jonathan Edwards preaching to the Presbyterians at his church in western Massachusetts a famous sermon that was later called " Sinners In The Hands of an Angry God". But Phelps uses his signs today as condemnation tactics only that causes a hostile reaction against the real Christian message of grace.

Cedarford said...

Fen said...
I imagine that if protesters were surrounding a Mosque shouting "Mohammed was a pedophile!" the ruling would be much different.

===================
The violence veto of free speech in action.
Since everyone believes Muslims would react violently to such an ibsult of the Prophet - doing so is easily placed in the "fighting words", "inciting riot", "disrupting public speech" category.
And, IMO, that is not a bad thing to limit free speech when it passes into causing violence as a predictable, even understandable reaction on the large crowd goaded and taunted so.

Demanding civility is unfortunately the means by which the abusive prey on the turn the other cheek wussies.

In the matter of Phelps, this is a decision of the berobed lawyers can be overturned - if some enraged father or Mom kills some Phelps people at a funeral - and is vindicated by jury nullification. Or if the Phelps make the mistake of going to a black soldiers funeral in a black neighborhood and shouting and displaying signs that "God hates black monkey fags like your son" - something the cunning lawyer spawn of Phelps have been careful to avoid.

Cedarford said...

jill815 said...
What else would you expect from a government with so little respect for the military that they'd name a navy ship for John Murtha?

It's just another slap in the face to those who keep us free.

=================
For Murtha's many faults, like the former Marine acting as Pelosi's proxy whore to lynch fellow Marines for the Haditha death allegations, he had redeeming qualities.

He never saw a Vets spending, or Defense procurement bill, or new weapons system he wouldn't push.

What Ted Stevens was to Alaska pork, John Murtha was to Defense and Vets groups pork. At the least, for the 100s of billions extra he got for the Armed Forces and Vets over the years, the guy deserves a ship named after him.

Simon said...

While there's a lot to be said for Alito's dissent, the court is correct. Some people are doubtful, and for them, given the universal opprobrium for the Phelps clan, perhaps the best way to think about the case is to substitute for the defendants any group with whose goals one sympathizes, particularly a group whose methods you doubt. If you are a liberal, think Snyder v. AFL-CIO; if you are a conservative, think Snyder v. Operation Rescue. I wish Alito's points were decisive, but they are not.

And I am saddened, candidly, for Albert Snyder, the latest victim of someone else's constitutional rights. What bitterly cold comfort for him, I suspect, to be told his remedy is more speech. See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

John Burgess said...

The example being used of 'If somebody yelled something in a mosque' is a poor one as it's not the same issue. The yelling in the mosque would be fighting words. Yelling 1,000 feet away from a church or funeral, behind established police lines is not. It's just obnoxious as hell.

Westboro Baptist Church is my WV: bulorhni

Simon said...

John, how about a situation midway between those extremes—this one, for example? On which side of your line does something like that fall?

Georgfelis said...

So as expected, (censored) have the right to be (censored) in public, to express their offensive opinions loudly, and in the most offensive spot they can legally express them in. And when somebody objects to your legal right to be an (censored) in public, sue them into the poorhouse. In short, this is what the Church of Phelps (unreformed) represents and how they are funded. (and is also why it is a bad idea to even imply physical violence against the idiots at a protest)

You may now expect the Phelps's to express their displeasure in a rousing hand of "Sue, lie, smudge and malign".

Originally I used an (censored) in my post, but had the good grace to replace it.

Skyler said...

I fear that with no legal resort to justice, there will be an increase in extra-legal methods.

The first amendment should protect from government reaction to speech, but to eliminate tort liability is a different matter. Intentional inflictional of emotional stress is a long standing common law tort and now it's been done away with. I predict a lot more broken noses will be the result.

Beldar said...

This is John Roberts, umpire.

Quaestor said...

Skyler wrote: I predict a lot more broken noses will be the result.

I predict a deal worse than broken noses. Though bitter to contemplate, there is a role for organized crime in our society and thus we'll never be rid it. Phelps or one of his minions is going to end up floating face down in some large quiet body of water.

Penny said...

"I fear that with no legal resort to justice, there will be an increase in extra-legal methods."

"Justice" is way more complicated than we care to even think about.

If there were REAL "justice" in this world, would we all be born to die? And even if we accept that as our lot in this life, will we ever accept that some babies die before their parents? I could go on with hundreds of examples, with one of the best being the "justice" in a young man or woman dying as a soldier who protects our freedoms while the rest of us sit on our asses and watch Lady Gaga or Charlie Sheen.

Life begins with a TOUGH premise, but nearly EVERYONE figures out a constructive way to deal with that which does not involve shooting or hurting someone who will outlive us.

Why is it that we become nearly CLUELESS about constructively resolving other real or perceived "injustices" in our lives when "The LAW" doesn't appear to be working in our favor?

Penny said...

That was a one hour pause...with no response.

No WORD from those who do not wish to use the law to resolve their personal "injustices"?

OK then!

Penny said...

Perhaps there are some out there who want to share exactly how they DID resolve their personal "injustices" in a much more COMMON way?

Does anyone at Althouse want to talk about who they SUED for the big "J" "JUSTICE"?

Marcia said...

Caplight said: "First, I have been where the WBC has picketed. A gay judge's funeral was at the church a block from where I work. Cops kept them on the other side of the street and opposite corner. In person it doesn't look as big as on TV."

I am also from Kansas and was at a funeral Westboro picketed.

They were kept a good 2 city blocks away, and the church was accessible from another direction. So they were never very close to the funeral procession.

They were certainly noticeable coming and going, but it did not have nearly the impact you would imagine from seeing it on tv.

Part of the answer would be for the media to refuse to give them the attention they obviously want. But that's about as likely as Fred getting reasonable.

They came to Kansas City last year to protest the Justin Bieber concert. My sister was telling me about seeing it on the news. She said "why would they protest that?" I told he she had answered her own question.

Penny said...

Oh hell "NO"! lol

Conservatives don't "sue"...much.

Instead they look for "HEARTFELT legislation"!

No money passes hands...exactly.

What heartless soul would EVER count legislative hours spent in discussion of approving Madison, Wisconsin memorials to Norwegian-American Civil War heroes who ended up on the "winning" side?

mccullough said...

I thought the internet postings in Breyer's concurrence referred to the "epic" in footnote 1 in the opinion. The respondent followed up his protest at Lance Corporal Matthew Snyder's funeral with internet postings directed at the Snyder family.

Alito's concurrence talks about the epic postings in which the respondent said Lance Corporal Matthew Snyder's parents taught him to "divorce and to commit adultery" and that their son was burning in hell because they raised him Catholic.

The "epic" postings, which don't seem to be protected First Amendment speech, played an important role at the trial, but weren't mentioned in the cert petition or briefed much by the lawyer for Lance Corporal Matthew Snyder's father before the Court.

Given these postings, it certainly was questionable whether the respondent's funeral protest was on a matter of public concern or was private speech directed at a private figure with a sign saying "You're Going to Hell."

Unlike the trial judge and the jury and Justice Alito, the other justices on supreme court and the appeallate court interpreted the "dominate theme of the signs" to be matters of public concern, even if two of the signs were likely directed at the family of Lance Corporal Matthew Snyder.

This "dominate theme" is a new one for the Court, although it also thought it important that the respondent had been doing this sort of thing for about 20 years, so the "context" of the funeral of Lance Corporal Matthew Snyder was not important, even if his family had never heard of respondent and had no idea why someone would hold up a sign saying their son was going to hell down the block from his funeral.

The protest, according to the majority, was about the Catholic Church, the U.S. military, and the U.S.

The fact that the respondent used the funeral of a private figure to get out its message was unfortunate.

And although one of the respondent's kin held up a sign saying You're Going to Hell followed-up with internet postings libeling Lance Corporal Matthew Snyder and insulting his parents for raising him Catholic and encouraging him to join the military, this is not important. What's important is that the supreme court needed to use the funeral protest, coupled with procedural rules that they invoke when or ignore when it suits them, to create a new doctrine called the "dominant theme," to advance the First Amendment rights of the rest of us. Nothing personal against Lance Corporal Matthew Snyder or his family.

Penny said...

Billy Bob Thornton as "mccollough"?

Hey!

Works for me.

Simon said...

mccullough said... "The protest, according to the majority, was about the Catholic Church, the U.S. military, and the U.S."

They don't like Catholics, to be sure, but when they came to my town they spent as much time protesting a baptist ecclesial community as a local Catholic church. I suppose that the message is that we are too Catholic and our baptists aren't baptist enough! Anyway, the protest really isn't about its prima facie targets so much as getting attention for their agenda—which is precisely why the majority was right.

"What's important is that the supreme court needed to use the funeral protest … to create a new doctrine … to advance the First Amendment rights of the rest of us."

I think that's close, but it's stated backwards. I think the court felt unable to rule for Snyder without creating a new doctrine which constricted everyone else's First Amendment rights.

On the other hand, while the decision was correct, Skyler raises a good point. Phelps is going to be taken care of eventually; all that was accomplished today—by the First Amendment, mind you, not by the Court that faithfully applied it—was ensuring that the day of reckoning will not be in court. Justice Holmes is supposed to have said that if the country wants to go to hell, the court's job is to help them get there quickly and efficiently; that aphorism has rarely been so acutely correct as today.

Penny said...

Did I offend you enough to get your attention, Mr. McCollough?

Hopefully I never offended you at all!

Merely trying to carry on dialogue, but it seems I needed for you to look in my direction FIRST.

So sorry for any personal slights, because I meant, not ONE.

Penny said...

Simon, on the other hand, is trying to overwhelm you with his knowledge of "the law", which, oh by the way, forgot to serve your most heartfelt views.

Fortunately, neither of us need pay him for his "legal opinion" when the Supreme Court is working on our behalf this year. :)

The Supreme Court may not always be right, but they are nearly always FREE to you and me!

peter hoh said...

Palin doesn't like the decision. She tweeted:

Common sense & decency absent as wacko "church" allowed hate msgs spewed@ soldiers' funerals but we can't invoke God's name in public square

Penny said...

Not to be mistaken for ....

The Supreme Court is "Free to BE you and me."

Oprah's got that "gig", FINALLY!

Penny said...

"Palin doesn't like the decision."

So?

Who does... LIKE the decision?

Penny said...

Does anyone here really believe that a single Supreme Court member "LIKED" the decision?

Penny said...

"LIKING" is not the job of the Supreme Court.

Simon said...

Peter, funny, isn't it, that the tea party is big on the Constitution until it isn't. Perhaps there is something to be said for the view that "[c]ommon sense & decency" should trump law, but coming from someone like Palin it seems utterly incoherent. And, of course, we can invoke God's name in the public square; she is confusing "we" with "the government" (cf. Lynch v. Donnelly)—likewise a defensible position but an odd position for a conservative.

Revenant said...

Who does... LIKE the decision?

I love the decision. I hate the Westboro Baptist Church, but I love that people aren't allowed to ban others from speaking just because the speech hurts their feelings.

Anyway, Palin's just doing her usual poll-tested response thing. Most people will hate this decision, so condemning it is the smart play politically.

Revenant said...

Peter, funny, isn't it, that the tea party is big on the Constitution until it isn't.

Sarah Palin is not "the tea party". She had nothing to do with the tea party movement until after it had already gained political momentum. Then she hopped on the bandwagon.

She's welcome to hop right the hell back off, so far as I'm concerned. It isn't like she's giving the rest of us any credibility with swing voters.

Penny said...
This comment has been removed by the author.
peppermintswirlz07 said...
This comment has been removed by the author.
peppermintswirlz07 said...

Only Justice Samuel Alito dissented. He said the church's "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," he said. "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."

He makes a good point.

peter hoh said...

To answer Fen's hypo: I don't have video of someone screaming insults about Muhammad outside a mosque, but here's video of people protesting a gathering of Muslims, and it includes someone screaming insults about Muhammad.

link.

Danny Haszard said...

Harassment by religious extremist

Jehovah's Witnesses instigated court decisions in 1942 which involved cursing a police officer calling him a fascist and to get in your face at the door steps,....this same JW 1942 court decision upheld infamous Phelps hate church in 2011
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Danny Haszard