Wednesday, March 2, 2011

A Dissenting Opinion

The Supreme Court of the United States ruled today on the Snyder v. Phelps case. The 8 -1 majority opinion found that my family's pickets are protected speech under the First Amendment. I'm disappointed. The majority opinion written by Chief Justice Roberts explains that
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. "[S]peech on 'matters of public concern' 'at the heart of the First Amendment's protection.'" The First Amendment reflects "a profound national commitment to the principal that debate on public issues should be uninhibited, robust, and wide-open."

He further explains that
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.'" As in other First Amendment cases, the court is obligated "to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'"

Ultimately the Court argues that the specific language of the signs:
While [they] may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of oru Nation, homosexuality in the military, and scandals involving the Catholic clergy-are matters of public import.
As such, they are entitled to First Amendment protection.
Concerning Al Snyder's contention that the context of the speech - at his son's funeral - makes the speech a matter of private rather than public concern. The Court responds:
The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro's speech. Westboro's signs...reflect the fact that the church finds much to condemn in modern society. Its speech is "fairly characterized as constituting speech on a matter of public concern," and the funeral setting does not alter that conclusion.

As I'm reading the opinion I keep thinking that something is missing. The Court has, in my opinion, made the same error as the Appellate Court before them. No serious consideration is given to the right of a person to bury a loved one in peace. Then I get to Justice Alito's diseenting opinion and there it is.

Justice Roberts makes much of the duty of the Court to consider "the whole record" in determining the nature of the speech and whether it concerns public matters. Buried in the body of his dissenting opinion Justice Alito sheds light on a critical aspect of the Court's thinking.

A part of my family's protest surrounding the death of Matthew Snyder was the online post they made a few days after picketing his funeral. The title of the post was "The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!" In that nifty little outburst of inscribed drivel the language clearly abandoned "public issues", turning brutishly private and personal in nature:
God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! raised him for the devil. Albert and Julie RIPPED that body apart and taught divorce, and to commit adultery...They also...taught Matthew to be an idolater.

How could the Court possibly rule that this language concerned a public issue? Well, as Justice Alito explains, they didn't bother. Footnote #15 explains:
The Court refuses to consider the epic because it was not discussed in Snyder's petition for certiorari.

A critical aspect of the case at both the District and Appellete Court level, and the Supreme Court excludes it on a technicality?!? Alito explains the error of that decision:
The epic, however, is not a distinct claim but a piece of evidence that the jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress. The epic cannot be divorced from the general context of the funeral protest. The Court's strange insistence that the epic "is not properly before us." means that the Court has not actually made "an independent examination of the whole record". And the Court's refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro's protest activities at other times and locations.

It has been my contention all along that protesting at a funeral is unconscionable. For the Court to give greater consideration to Free Speech, at the expense of a citizen's right to bury a loved one in peace, is a dangerous travesty of justice.
Mr. Snyder's attorney argued that letting my family by with the hateful, personal attacks on vulnerable private citizens simply because they ALSO are expressing their ideas on public matters was bad law. From this language:
I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected,
Alito clearly agrees.
I have argued before that the founding fathers likely never imagined the possibility that someone would ever think it was okay to picket the funeral of a private citizen. If ever there was a just reason to limit the time and place that a person can exercise their First Amendment right to free speech, this would be it. The Court sidesteps their responsibility on this point by suggesting
that the wounds inflicted by viciosu verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral.

Justice Alito points out that
The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. Exploitation of a funeral for the purpose of attracting public attention "intrud[es] upon their...grief, and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undremine public debate.

Well, at least he gets it. In my opinion, the Court dropped the ball today. It shows the inherent weakness in our system of justice when a critical barrier to the decision they wanted to render, the epic, is so easily shunted aside with a bit of judicial slight of hand. The Court had the opportunity to balance the free speech rights with another de facto right to mourn a death in respectful privacy.
Justice Roberts concludes the majority opinion with these thoughts:
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.

What he didn't say is that the majority of the Court today decided to ignore those tears and unnecessarily foist that pain on citizens in the future.