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Mr. Alito is also somewhat persuasive with respect to privacy. There are few things more devastating than out-living one’s child, and a funeral at which a father is burying a son killed in the line of duty should be the last place where anything remotely resembling inappropriate behavior takes place. More to the point for Justice Alito, such somber occasions should be private affairs.
“Petitioner Albert Snyder is not a public figure,” Alito argued. “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.”
As most Americans know, the right to privacy was enshrined in the landmark Roe v. Wade decision of 1973, affirming a woman’s right to an abortion. Furthermore, fourteen states extend that right to minors, absent parental permission or notification. In that sense, the right to privacy trumps the rights of an “outside agent,” aka parents, to either regulate or be aware of their child’s behavior, even where a medical procedure is concerned. Since the court has yet to declare such laws unconstitutional, it can be reasoned that the right to privacy can infringe on those of outside agents (parents) with respect to abortion, even as the court contends it cannot on outside agents (protesters) with respect to funerals. Yet perhaps there is a strange consistency here after all: in both cases, the rights of parents are trumped by larger considerations.
With respect to protesters per se, however, the Supreme Court has demonstrated consistency. The Westboro protesters prevailed in court due in large part to the fact that they were more than one thousand feet away from the church where the funeral took place, which more than satisfies the 100-foot restriction imposed by the state of Maryland. In a 6-3 ruling handed down in 2000, the Supreme Court upheld a Colorado law aimed at abortion protesters which specified that no one may, without permission, get within 8 feet of another person within a 100-foot radius of a health-care facility. Thus, the acceptable boundary restrictions of protests were established long before Snyder v. Phelps, making this decision all but a foregone conclusion.
So why would Samuel Alito dissent? The Wall Street Journal’s James Taranto offers a hint. Referring to Justice Alito as “the court’s outlier on cases involving outré speech,” Taranto noted that he was also the lone dissenter in the U.S. v. Stevens, another First Amendment case in which the Court “struck down a law banning videos depicting animal cruelty.” Both cases involved rulings in which the American public simultaneously accepts the value of the First Amendment even as they are thoroughly reviled by the particular beneficiaries of it. (It is worth noting that the original jury verdict in Snyder found Fred Phelps liable for intentional infliction of emotional distress, and awarded $10.9 million to Albert Snyder.) In Stevens, animals were filmed getting crushed to death in viscerally disgusting detail. In Snyder v. Phelps, a group of repugnant protesters attempted to disrupt a man’s final moments with his dead son.
Perhaps Mr. Alito has taken it upon himself, with or without the consent or knowledge of his fellow jurists, to be a kind of “pressure release valve” for public discontent. Perhaps, knowing that he could not prevail constitutionally, he decided to give some credence to the emotional upheaval that such difficult decisions engender. This is strictly a theory, and it is predicated on the idea that Mr. Alito was well aware that his fellow jurists would protect the First Amendment without his help. And even though Supreme Court justices are, or should be, aware that emotionalism has no place in the arena of jurisprudence, perhaps granting a legally inconsequential nod to the idea that “justice must be tempered with mercy” was what occurred here.
Arnold Ahlert is a contributing columnist to the politically conservative website JewishWorldReview.
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