Retired Supreme Court Justice John Paul Stevens gave a remarkable pair of speeches earlier this week in New York, where he weighed in on several of the Court’s recent high-profile decisions. Among them was the gun rights case McDonald v. Chicago (2010), which Stevens criticized while also offering an approving nod to “Justice Thomas’s scholarly concurrence.” Remember that Thomas, unlike the other eight justices in McDonald, held that it was the 14th Amendment’s Privileges or Immunities Clause—not its Due Process Clause—that should be used to apply the Second Amendment against the states. This praise for Thomas’ concurrence is well-founded.
But the biggest news centers on Stevens’ criticism of the Supreme Court’s sweeping free speech decision in Snyder v. Phelps (2011), which ruled 8-1 in favor of the noxious Westboro Baptist Church’s right to protest outside of military funerals. This isn’t the first time Stevens has taken a narrow view of the First Amendment, of course. In Texas v. Johnson (1989), for instance, he voted in favor of a state law forbidding the “desecration” of the American flag. And in 2010’s Citizens United v. F.E.C., Stevens voted in favor of the federal law that would have prevented the release of a political documentary shortly before an election. Still, it’s notable to find him in agreement with Justice Samuel Alito’s lone dissent in support of silencing the Westboro Baptist protests:
It might interest you to know that if I were still an active justice, I would have joined [Alito's] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech. The case…involved a verbal assault on the private citizens attending the funeral of their son — a Marine corporal killed in Iraq. To borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into "free-fire zones."
For more on Justice Stevens' legal views, go here.