The Lone Dissenter

Earlier today, the Supreme Court decided 8-1 in favor of the Westboro Baptist Church’s right to be egregiously hateful by protesting at military funerals. Offensive as their speech may be, the majority opinion states that they have a right to it:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

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. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

So who was the one dissenter? Turns out to be Justice Samuel Alito — an interesting twist, especially for those who assume that the “conservative” appointees all vote in lockstep (or with the “conservative” interpretation of the law). His rationale:

 

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

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. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). 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.

I fully sympathize with Alito here, as I find the Westboro Baptist “Church” and their protests loathsome — but that’s why I’m glad I’m not a Supreme Court justice, because I think the majority made the right call. The protests occurred peacefully, on public property, in accordance with the law; saying that one may not “intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity” is vague enough to be a dangerous precedent to set.

I’m curious to hear from others, though: What do you think of the majority opinion, and Alito’s dissent?

Margaret Cabaniss

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Margaret Cabaniss is the former managing editor of Crisis Magazine. She joined Crisis in 2002 after graduating from the University of the South with a degree in English Literature and currently lives in Baltimore, Maryland. She now blogs at SlowMama.com.

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