Tuesday, March 8, 2011

A Victory for Justice Brennan and the Westboro Baptist Church

The Supreme Court ruled 8-1 in favor of the Westboro Baptist Church's right to picket with offensive signs at Matthew Snyder's military funeral. Chief Justice Roberts wrote the opinion for the Court concluding that the church's offensive speech involved a matter of public concern on public property and was protected by the First Amendment. Snyder’s father Albert was thus unable to collect a jury verdict for his emotional distress and privacy invasion. 

Although Matthew Snyder’s father sued the church for the torts of intentional infliction of emotional distress and invasion of privacy, it was another tort, the tort of defamation, that provided the legal context for the opinion. Over a series of cases since 1964, the Court developed a law of defamation that involves four categories: matters of public concern, matters of private concern, public figures and private figures. The Court then matched those categories—matters of public concern involving public figures, matters of public concern involving private figures, matters of private concern involving public figures, and matters of private concern involving private figures. 

Although the Court never filled in the law for all those categories, in the precedent most relevant to Snyder's case Jerry Falwell was not allowed to sue Hustler Magazine for intentional infliction of emotional distress because he was a public figure. Before Snyder was issued, everyone wondered if the Court would allow Albert Snyder’s lawsuit to proceed because Snyder was a private, not a public, figure.

Instead, Chief Justice Roberts ignored the public/private figure issue completely and focused on public concern, explaining that the church's offensive picket signs definitely involved matters of public concern: 

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed ... to reach as broad a public audience as possible. And even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.

Only the lone dissent by Justice Samuel Alito focused on the private figure analysis and concluded that the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.

With its emphasis on matters of public concern and its avoidance of the public/private figure issue, Chief Justice Roberts' opinion is reminiscent of the rejected plurality opinion of Justice  William Brennan in Rosenbloom v. Metromedia. George Rosenbloom was an obscure private individual until Metromedia reported his arrest for obscenity. Brennan's plurality on a fractured Court held that the strictest First Amendment standard should apply to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous," i.e., public or private figures. 

Justice Brennan never got a majority of the Court to support that reasoning, however. Even Justice Thurgood Marshall, who frequently voted with Brennan, worried in Rosenbloom that any decent system of ordered liberty had to protect anonymous persons from unjustified invasion and wrongful hurt and urged Brennan to strike the First Amendment balance differently for private figures. There were concerns among the other justices that the public concern test was too vague to provide an adequate rule for the courts to follow.

Now Chief Justice Roberts appears to adopt Brennan's test, meaning that the First Amendment balance could regularly be struck in favor of protecting speech about public concerns. Roberts avoids the most interesting question, which is anticipated by Justice Stephen Breyer, namely in this Internet era is there any speech left that does not involve a matter of public concern? We will have to wait to learn what the Chief thinks about that question....and to see if his First Amendment standard becomes persuasive in a manner that Brennan's never did.

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