What Speech Would Be Free In Alitopia?

Supreme Court Justice Samuel Alito is the lone dissenter in the high court's ruling for the Westboro Baptist Church in Snyder v. Phelps.

The case involved a March 2006 demonstration by Rev. Fred Phelps' and some members of his family at the funeral of Marine Lance Cpl. Matthew Snyder.

The protest at Snyder's funeral—one of many that members of the Topeka, Kansas church have organized, often (and in this case) bearing signs that read "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "God Hates Fags," "Pope in Hell," etc.—was confined to a public area adjacent to the event. At their nearest approach, according to Chief Justice John Roberts' ruling, the demonstrators and the funeral party were separated by a distance of at least 200 feet.

Still, the Maryland U.S. District Court later awarded Snyder's father Albert Snyder $5 million in damages for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. (Snyder also filed tort claims on defamation and publicity given to private life, which were dismissed.) An appeals court overturned this award, ruling that Westboro's signs were entitled to First Amendment protection because they addressed "matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric."

The Supreme Court's 8-1 ruling upholds that judgment. You can read the whole decision here. With all due contempt to Fred Phelps and his offspring, I think the only thing wrong with this ruling is that language about "matters of public concern" and "hyperbolic rhetoric," because it seems to assume speech needs to earn its freedom through a combination of criteria. If, for example, Phelps had not used hyperbolic rhetoric but calmly made the case, "Snyder, I'm glad your son was killed by the enemies of this country," would that be protected speech? (I am relieved to know "Pope in Hell" is not provably false.)

Alito disagrees with the ruling in language that is surprisingly touchy-feely. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he writes, citing with Snyder's "acute emotional vulnerability" and "severe and lasting emotional injury" in the face of a "malevolent verbal attack."

When he says "verbal attack," Alito is speaking literally. Referring to Stephen Breyer's hypothetical case in which "A were to physically assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern," Alito concludes, "This captures what respondents did in this case."

That seems like a stretch to me. You are free to ignore nasty words in a way that you are not free to ignore physical violence directed at you. The analogy breaks down even further because in this case the offensive speech was not an assault designed to bring attention to the message. It was the message itself. While he believes the majority was wrong in its belief that Westboro's message was general in nature rather than specific to Matthew Snyder (and thus potentially actionable), Alito also seems to be supporting an idea I generally associate with Catherine MacKinnon: that some ideas are in and of themselves capable of causing "great injury" and a form of "brutalization."

Alito also seems to endorse the "funeral exception" Damon Root reported on back in October.