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Thursday, October 07, 2010

Whither Snyder or wither the First Amendment?

Having read the transcript in Snyder v. Phelps, I have no idea how this is going to come out (I never do, but this one feels different).

Calvin Massey (who says he learned long ago not to predict case outcomes) nevertheless predicts a 6-3 Court (Kennedy for the Court; Ginsburg dissenting for herself, Sotomayor, and Kagan) will remand for a new trial under a standard that permits liability if: the victim is a private person, the speech invades the victim's reasonable expectation of tranquility at a moment of vulnerability, and the speech (taken as a whole and considered from the vantage point of a reasonably objective observer) is primarily directed at the victim in order to inflict emotional injury. Dahlia Lithwick is more equivocal--she says the "Justices really, really, really just hate the Phelps family and its manner of protest, and they might even be willing to whip up a little new First Amendment law to prove it," although she does not predict the outcome. (Lithwick, by the way, suggests that I was not alone in wondering why the Court took this case). Given this round-up, it seems other commentators and observers are similarly divided. [Update: More views, all arguing that the Court will (or at least should) hold that the speech is protected: Eugene Volokh, Geoff Stone, and Jamin Raskin (H/T: SCOTUSBlog). I agree with them all normatively, less sure predictively].

A few things of note:

1) There was no mention whatsoever of Milkovich, the case on which the Fourth Circuit relied in reversing the trial court. Milkovich held that liability for defamation could not attach to speech that could not reasonably be read as making verifiable factual assertions; the Fourth Circuit held that Westboro's statements were hyperbole, not intended as statements of fact and thus could not form the basis of civil liability. No one talked about this, suggesting that this standard will not control the case and any decision will not be as rigidly and categorically speech-protective as what the lower-court did.

2) Lithwick reports that Margie Phelps, Fred Phelps' daughter who represents the Church, speaks in the "flat, affectless voice of someone who has been either extremely well-coached or exceptionally well-medicated." Not something that comes through in the transcript. What is clear is that she did not want to answer any of the justices' many hypotheticals about  protesters getting "in the grill" (a favorite phrase of Phelps) of an elderly Quaker who just buried her killed-in-action grandson (no, really). I think Phelps was trying to differentiate the sort of face-to-face, up-close encounters that mark unprotected categories such as fighting words, threats, and harassment, none of which was present here. But she never quite got there.

3) The Court and the litigants had trouble unpacking distinct elements in the case and figuring out which is (and could be) the proper basis for harm and liability. There are three: 1) the private, targeted epithets directed at the Snyder family by the protesters; signs; 2) the targeted epithets on the web site; 3) the disruption to the funeral caused by the protesters being present (the mourners were redirected to a different entrance to avoid the protest).

Justice Scalia at several points tried to push Snyder's lawyer to concede that the case is all about # 1, that the case was all about the "nasty signs." The lawyer tried to straddle between # 1 and # 3, alternatively arguing that the pointed nature of the signs was the harm, other times saying the disruption itself was enough. Fortunately, # 2 seemed to fall out of the case, suggesting that the Justices (except perhaps Justice Breyer) recognize that no liability can attach to the statements on the internet, general as they are.

4) Until Justice Kagan's questioning of Snyder's lawyer in rebuttal, no one ever seemed to grasp that a pointed, directed epithet could be purely and expressly political, even if hyperbolic. Before that, the hypos were at the extremes. They all involved either a bland, generally directed saying--"The War is Unjust" or "Get Out of Iraq" or "American policy is wrong"--or a personal attack with no real political meaning--"God hates you" "Your parents gave you to the devil" or "I'm glad your grandson was killed by an IED and I wish I'd been there to photograph it." On rebuttal, Kagan finally raised "You are a war criminal" as a protest sign, with plaintiff's lawyer suggesting it may not be protected (as distinct from "war is wrong"). "War criminal" is clearly directed at an individual, but also clearly political and at the heart of debate over a war, even if the person mentioned in the speech is a private person. For that not to be protected (outside of an up-close, face-to-face, personal encounter) from civil liability would be a significant limit on free speech.

5) To the extent Phelps did a bad job and that produces a less-speech-protective precedent, that will be unfortunate. I find it hard to believe that no one on the First Amendment bar wanted to take this case, simply to avoid even a narrow carve-out of basic First Amendment principles. On the other hand, with the Phelps and Westboro, I think we have found the least popular speakers ever to come before the Court in a free-speech case. Even white supremacists and child pornographers and flag burners came across more favorably before the Court.

6) I close where I began: I am not sure what is going to happen. The Court was more receptive to the possibility of restricting this speech than I would like or would have hoped, apparently moved along by the distasteful speech and speakers involved. But I find it hard to believe that a majority of the justices are going to ignore or water down the First Amendment (and the Court is not going to be able to create a legal rule that does not potentially reach a lot of speech that is far less offensive than what we have here) based on an emotional reaction to distasteful speech and speakers.

Posted by Howard Wasserman on October 7, 2010 at 08:01 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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Several of the Justices seemed concered when (if at all) a mourner is a 'public figure' and/or when a funeral is a matter of 'public concern.'

I was surprised there was so little discussion regarding captive audience doctrine - Snyder's lawyer didn't even mention it, Justice Alito brought it up to Phelps. Had I been Snyder's attorney, I would have emphasized funerals are a prime candidate for extending captive audience designation (even though I don't fully believe this myself). I also would have tried the mourning as a "fundamental right, deeply rooted" angle.

Anyone else notice Justice Sotomayor's slip on the "Iran" war? I wonder if the audience reacted to it...

I look forward to listening to the audio tomorrow - from reading the transcript, I would think Phelps certainly held her own (if not outperformed her oppponent). Can't wait to hear the "in your grill" discussion....

Not sure how the court will go here, nor why Scalia seemed so focused on 'fighting words' nor Breyer with the Internet.

Something tells me we'll seem muliple opinions....

Posted by: Brian | Oct 7, 2010 2:51:14 PM

I find it hard to believe that a majority of the justices are going to ignore or water down the First Amendment (and the Court is not going to be able to create a legal rule that does not potentially reach a lot of speech that is far less offensive than what we have here) based on an emotional reaction to distasteful speech and speakers.

Agreed, and yet "drugs! bad!" was enough in Morse.

Posted by: Roger | Oct 7, 2010 1:33:24 PM

Anon: Not all federal employees are public figures (even I wouldn't go that far). I just don't think public/private matters.

Kristen: I have not seen such information. And given the way most speech-protective scholars had lined up behind the Phelps, I have no doubt they would have been able to find *someone* on the Supreme Court bar to take the case.

Posted by: Howard Wasserman | Oct 7, 2010 12:01:01 PM


I, too was surprised that one of the Phelps family was arguing the case, and had assumed they would have had plentiful offers from First Amendment lawyers with Supreme Court experience who were eager to argue the case. But then I thought perhaps the Westboro folks might have rejected any such offers, whether on the grounds that they believed knew the factual background better than an outsider could (as I beleive Mr. Newdow did in the pledge of allegiance case), or out of a reluctance to trust or associate with a "sinner" -- i.e., someone who does not share the Westboro church's beliefs. Have you seen any information that suggests whether Margie Phelps argued the case out of necessity rather than choice?

Posted by: Kristen | Oct 7, 2010 9:41:01 AM

How/when is a Marine a private person, as opposed to being a federal employee?

Posted by: anon | Oct 7, 2010 8:56:00 AM

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