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.
Dahlia Lithwick called the "Phelps Family Roadshow of Bilious Bigotry." And it's fine that someone picked up the slack to make the point.what
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.
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.