On March 2, the U.S. Supreme Court issued its opinion in Snyder v. Phelps et al. The media, numerous pundits and politicos have already begun picking apart and commenting on Chief Justice John Roberts' majority opinion. This op−ed hopes to add to that debate by shining a light on the lone dissent, written by Justice Samuel Alito.
The facts of the case are as follows: The Westboro Baptist Church, a small ministry operated by the Rev. Fred Phelps and his family, has become notorious in recent years for picketing at military funerals, university commencements and other public events. The church maintains very extreme views on homosexuality and other religious groups. Church members often hold signs with messages like "Pray for more dead soldiers" and "God hates fags."
In 2006, the church protested the funeral of Marine Lance Cpl. Matthew Snyder, who died while serving in Iraq. They made sure to hold their signs the legally sanctioned 1,000 feet away from the cemetery. Snyder's father was not able to see the signs during the funeral service, although he did see the tops of the signs while driving to the ceremony. But he later, upon turning on the nightly news, discovered that the Phelps family had picketed his son's funeral and became emotionally distraught.
Snyder sued, alleging, among other things, that the Phelps had intentionally inflicted emotional suffering on him and invaded his privacy (the legal term is intrusion upon seclusion). The Phelps family countered these claims by citing their First Amendment right to free speech. As you may now know, the court ruled 8−1 in favor of the Phelps family, deciding that their words and acts were protected free speech since the majority of what the Westboro Baptist Church had said was directed at "broader public issues."
Most people are probably disgusted by the comments made by the Phelps family, and some even believe that public opinion should be able to dictate what the Phelps family can or cannot say. But freedom of speech as guaranteed by the First Amendment protects the minority against the majority, and people have the right to say things others do not like. This right cannot be infringed upon by the government.
Yet this is only partially true. There are various restrictions on freedom of expression; for example, you cannot yell "Fire!" in a crowded theater or directly threaten imminent violent action. Commercial speech, like television or newspaper advertisements, can be regulated. And you cannot publish false statements about individuals, businesses or even products — this fits the definition of libel, and the individual or business has the right to sue for damages.
Again, what the court holds in the majority opinion is that the Phelps family's protests and the majority of their comments are protected free speech because the majority of what they said was focused on issues of broad public concern. But Justice Alito disagreed, and I believe his reasoning should be better publicized. Justice Alito makes clear in his dissent — by citing portions of a Westboro Baptist Church press release — that comments made after the funeral took the form of personal attacks on the Snyder family. This press release called out the family by name and accused the Snyders of certain heretical activities. These personalized comments appear to have little to do with matters of public concern since they focus primarily on the private lives of private citizens.
While the Phelps family may have followed the law and were within their rights to protest about their broader political or social beliefs, they crossed that line when directing press releases and whole paragraphs at the Snyder family and their private lives. Instead of protected free speech, these claims appear defamatory and potentially libelous, according to Justice Alito. And while these statements might later be found not libelous, the Snyder family should at least have the opportunity to bring a libel suit to court.
Instead, the majority opinion states that the Phelps family is protected from such suits, because the majority of what the Phelps family says or does "speaks to broad public issues." In effect, the Supreme Court has given a freedom of speech shield to the Phelps family to make statements directly targeting private citizens as long as the overall protest and commentary is related to broad public issues the majority of the time.
I have to agree with Justice Alito — slanderous or libelous statements remain so regardless if what is said before or after is factual or a matter of broad public interest and debate.
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