Saturday, March 5, 2011

An 'inarticulate grunt' ...

Freedom of speech -- the right to say what's on your mind. Those who wrote the Constitution realized the great importance and power of words, which is why speech is addressed in the Bill of Rights.  The First Amendment of the Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech ...
Like much of the Constitution, however, the Framers didn't define what freedom of speech entails. Are we to presume this freedom is absolute? That we may use whatever words we believe are necessary or come to our minds? Surely not.

For every rule, exceptions exist. The First Amendment is not some bulletproof vest that shields citizens from liability in all situations, though many incorrectly believe otherwise. The Supreme Court of the United States has noted a such, holding:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

-- Chaplinsky v. New Hampshire (1942)
Slander, libel, obscenity, 'fighting words,' and the speech rights of public school students are all just a few examples of speech that can be limited by the government. Let's also be clear about another issue. Just because these types of speech aren't protected by the Constitution doesn't mean they automatically become illegal. This means the states or the federal government can make regulations or laws punishing those forms of speech. It also means certain parties can be held liable in civil court for damage done by that speech.

This week, the Supreme Court decided a free speech case in a rather surprising way. In the matter of Snyder v. Phelps (2011), the Court ruled 8-1 in favor of Fred Phelps and the Westboro Baptist Church. Phelps and his followers are known for picketing the funerals of American servicemen, claiming these men were struck down by God as a punishment for the nation's acceptance of homosexuality.

The Court's ruling stated the actions of the group's speech was indeed hateful but also was protected by the First Amendment. The picketing, they ruled, was directed not at Matthew Snyder's funeral, but at the lack of morality of the United States in general. Thus, the Snyder family was unable to recover any damages.

The Court is wrong on this issue. The key in this case is whether or not this speech was addressing a public matter or a private one. Westboro Baptist had a large number of signs pertaining to the overall morality of the country, but also had signs directed personally at Matthew Snyder and his family.  Sadly, the Court believed the message was aimed at a general matter of the nation's morality, completely ignoring the intent to harm the Snyder family.

The Court itself also recognized the picketing was purposefully done to coincide with Snyder's funeral. The venue and speech do not constitute a public matter, but a private one.

The Court also examined whether the Snyder family should have been protected from "unwanted communication" as funeral goers should be considered a captive audience. In the past, the Court has a provided a narrow scope for what makes a captive audience and the declined to expand that in this case.

Justice Samuel Alito disagreed with the Court and made some strong points in his dissenting opinion:

Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views ... It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery ... for the intentional infliction of emotional distress ...

Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. They did not dispute that Mr. Snyder suffered “ ‘wounds that are truly severe and incapable of healing themselves.’ ” Nor did they dispute that their speech was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong. [Emphasis added.]

... the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

“Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not.
Alito's full dissent, along with the Opinion of the Court are available online at or at .  Search "Snyder v. Phelps."

I am shocked that eight of the justices overlooked the damage inflicted upon Albert Snyder and his family.  The Court placed far too much emphasis on the fact that the picketing was done in a peaceful, lawful manner.  That fact is irrelevant when the speech conveyed from that picketing is directed at a private individual. 

To Justice Alito:  somewhere, the "Great Dissenter," John Marshall Harlan, is smiling.

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