A Judge's Dissent

For the second time, Justice Samuel Alito is the lone dissenter in a First Amendment case -- is he right?

On Wednesday, the Supreme Court struck down a jury award against Fred Phelps of the Westboro Baptist Church.  In Snyder v. Phelps, Mr. Phelps had been sued for "emotional distress" by Albert Snyder when his Westboro Baptist Church group (WBC) picketed the funeral of Snyder's son, Lance Cpl. Matthew Snyder, who had been killed in Iraq.  Mr. Phelps and his Westboro Baptist Church group showed up near the church where the funeral was held, displaying signs such as "Thank God for Dead Soldiers," "Fags Doom Nations," "God Hates Fags" "Priests Rape Boys," and "Pray For More Dead Soldiers."  The vote was 8-1, with Justice Samuel Alito casting the lone dissent.  It was a dissent for which Justice Alito is getting considerable criticism.  Yet there may be more to Mr. Alito's dissent than meets the eye.

First, some background. Mr. Phelps and his unaffiliated church, which includes seventy members of his extended family, have routinely picketed the funerals of dead soldiers for years, disrupting close to six hundred of them. The WBC claims to have held over 41,000 protests since 1991, and while their primary focus is military funerals, they were present at the funeral services for Elizabeth Edwards, Coretta Scott King, and Michael Jackson.  They were also going to picket the funeral of Christina Green, the 9-year-old girl killed during the attack on Congresswoman Gabrielle Giffords, but relented when Mike Gallagher allowed them to appear on his nationally syndicated talk radio show.

Publicity above all else, as Mr. Alito points out, is their primary objective:

The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson--proclaiming that she was 'better off dead'--their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest.

Mr. Alito considers such picketing, at least in this particular case, beyond the limits of protected speech.  "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote.

Justice Alito may have a valid point when one examines the first nationally publicized funeral protest involving the Westboro Baptist Church.  The group came to prominence in 1998 when they picketed the funeral of Matthew Sheppard, a man allegedly beaten to death for being gay.  Sheppard's death was the impetus for the "Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act," signed into law by President Obama in 2009.  This statute gives the Justice Department the ability to investigate and prosecute crimes motivated by race, color, religion, national origin, and disability.  As with many hate crime laws around the nation, the statute allows federal prosecutors to tack additional penalties on top of those ordinarily imposed, provided they can prove the perpetrator acted with malice regarding the aforementioned categories that might apply to the victim.

Presumably this law is constitutional.  Yet how can one be certain about what constitutes a hate crime without some element of derogatory speech involved? (Perhaps one could make a case that an individual dressed in a white robe and hood assaulting a black American can be assumed to belong to the Ku Klux Klan, but absent a confession by the perpetrator that he is, or any verbal exchange between the two men, how would it be possible to state beyond a reasonable doubt that such was a hate crime?)  And if derogatory speech, or "vicious verbal assault," as Mr. Alito characterizes the actions of the WBC, is something that can be considered an element of criminality with respect to hate crimes, how does it become protected with respect to funeral protests?

As it currently stands, it is theoretically possible that the same person free to hold up a sign with the word "fag" on it at a funeral can be given additional punishment for saying the word "fag" during the commission of an offense against a homosexual.

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.