Thursday, March 3, 2011

Free Speech - Sort Of

I wasn't going to write about the Supreme Court's decision in Snyder v. Phelps.
I figured there was really nothing much for me to add.  I assumed that many of my brothers and sisters of the blawg would offer generalized praise for the decision, coupled with reminders that even the most evil speech (which Westboro's is) by the most repulsive folks is (which Westboro's are) is entitled to First Amendment protection.  (It doesn't deserve that protection; it gets it because, like clemency, it's about us not about them.)
And, of course, a number have.  (See, for instance, Turley, Mayer, and of course and especially Randazza.)  And then Scott Greenfield jumped in.
It's not that Scott disagrees with the general view.  Yes, the Court got it right, he says.  But we should be grateful to Alito for dissenting as a reminder that - feh.  Here's what Scott wrote.
And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.  

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn't walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.
It's true, sadly, that while the majority opinion by the Justice with the self-satisfied smirk that he probably mistakes for a smile (that's Roberts) lays out in detail and with appreciation the powerful First Amendment issues in the case, its legalistic approach does little to capture the depth of repulsion we all should feel (and hope that Roberts and the rest feel) at what Dahlia Lithwick called the "Phelps Family Roadshow of Bilious Bigotry."  And it's fine that someone picked up the slack to make the point.
But Alito's dissent is a problem.  Not because he turns what should have been an easy 9-zip decision into a still overwhelming majority 8-1.  But because it reminds us that Alito really does think there's an exception to the First Amendment for the odious.
This isn't the first time Alito has been alone in staking out an offensiveness exception to the First Amendment's protection of free speech.  He alone believed (see United States v. Stevens) that First Amendment protection could be denied to depictions of animal cruelty.  Here's how Elie Mystal put it.
Call it Free Speech 101. The hard part about the First Amendment is that you have to allow people to say all manner of annoying, vulgar, and inappropriate things, at the wrong times.

Not that Justice Samuel Alito thinks so. Justice Alito was the lone dissenter in this case. He was also the lone dissenter in the Stevens case, in which the Court overturned a ban on animal crush videos on First Amendment grounds.  But he voted with the majority in Citizens United.
(I left in that last line about Citizens United because it finished Mystal's paragraph and it's where he was taking his post.  It's really beside the point here.)
OK, maybe Alito is alone on an otherwise free-speech friendly court.  But today's lone dissenter can be tomorrow's majority voice.  (See Scalia, Antonin.)  And it's never good to have a guy on the Court who just doesn't get it.
Especially when he's not altogether alone.
Because while the decision was 8-1, the majority was not.  Or at least not entirely.
Stephen Breyer, whose view of most Constitutional rights is, shall we say quirky (we shall), joined the majority opinion but felt constrained to write a concurring opinion pointing out that the First Amendment really isn't all that sweeping.
Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.
Forget all that broad language.  The Phelps family has First Amendment protection solely because this is a fact-bound opinion and the offensive folks walked a very fine line with great care.  Oh, and of course, it's only because they were picketing.  And on an acceptable subject.
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.”
Breyer's trod this path before, most tellingly in an interview with George Stephanopolis where he explained (misquoting Holmes) that problematic speech (he was talking about planned Quran burning by another reverend lunatic) really isn't protected.  Here's part of what I wrote at the time adding a word I'd left out and quoting Stephanopolis.
“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”
But, but, but (I'm sputtering here because that makes me so mad).
First, he's got Holmes wrong - and importantly wrong.  Here's the actual quote from Schenck v. United States.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
See the difference?
Holmes said that you can shout "fire" in a crowded theater.  In fact, if there is a fire, maybe you should.  But you can't (Holmes said), shout "fire" in that theater if it's not true and then cause "a panic."  There's no protection, that is, from causing great harm by a lie that you should have known would cause great harm.  
But that's not what Breyer seems to see.  He sees no protection for speech which might result in harm.  And boy is that ever something different.
And damned scary.
It was.  It is.  They are.  Both of them.  Breyer and Alito.
Nat Hentoff wrote a book called Free Speech for Me But Not for Thee.  He was, rightly, critical of that attitude.  There's a couple of guys in Washington ought to read it.
Disclosure:  I represented Shirley Phelps-Roper in a partially successful lawsuit challenging Ohio's funeral-protest law as amended precisely to keep the Phelps clan out of the state..


  1. Imagine little Mad Jack in elementary school, around age 10. I got the "it's illegal to shout 'fire' in a crowded theater" lecture with the additional threat of prison for the rest of my life in Sing Sing. Then, naturally, I had to ask:

    "What if there is a fire?"

    Which was only one of many mistakes that year.

  2. Precocious little rascal, weren't you.

    Actually almost nobody in the general public gets the quote right. But Breyer is a seriously bright guy (being wrongheaded isn't at odds with being smart), and a Supreme Court Justice. He really should know better, but getting it wrong also suits his purposes.