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By Edward Zelinsky



It is noteworthy when eight ideologically diverse justices of the U.S. Supreme Court all decide a First Amendment case the same way. Thus, Snyder v. Phelps is a noteworthy decision. The Westboro Baptist Church is well-known for its demonstrations at military funerals. Indeed, the Westboro Church, led by (and, some say, principally consisting of) the Phelps family, has the rare distinction of having been denounced by both Jon Stewart and Mike Huckabee.

Members of the Westboro Church demonstrated near the Maryland funeral of Marine Lance Corporal Matthew Snyder, killed in action in Iraq. Mr. Albert Snyder, the corporal’s father, sued the Westboro Church and its members for various torts including intentional infliction of emotional distress. Mr. Snyder prevailed in a jury trial. In invalidating the jury’s verdict, the U.S. Supreme Court, except for Justice Alito, said that the Church and its members were exercising their free speech rights in a constitutionally-protected fashion.

As the Court described the facts of the case, it is hard to disagree with this conclusion. According to those facts, the Westboro Church and its members told the local authorities of their intention to demonstrate at the time of the Snyder funeral and “complied with police instructions in staging their demonstration.” The Westboro demonstrators stayed “behind a temporary fence…approximately 1,000 feet from the church where the funeral was held.” The demonstrators went neither to the church where the funeral was held nor to the cemetery, and were nonviolent throughout their demonstration.

On these facts, the message conveyed by the Westboro Church is obnoxious (“God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers”) but constitutionally protected.

The problem is: Those were not all the facts of the case. Only Justice Alito confronted this reality. After the funeral, a member of the Westboro Church posted on the Church’s website a hate-filled message aimed specifically at the Snyder family. Among its other assertions, this website message accused Mr. and Mrs. Snyder of having “raised [Matthew] for the devil.” The Snyders, the web message continued, “taught Matthew to defy his Creator, to divorce, and to commit adultery.” Then the Snyders sent their son “to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life.”

Media accounts of the Court’s decision have largely ignored this web-based attack on the Snyders. Media accounts have also largely ignored the eight Justices’ acknowledgment that, if this web-based attack is considered, Westboro and its members may indeed have stepped over the line, forfeiting First Amendment protection by this vicious internet attack on the Snyder family. As Chief Justice Roberts put it in a footnote to his majority opinion, this “Internet posting may raise distinct issues in this context,” issues which the Court declined to consider because of the failure of the Snyders to press this point in their petition to the high court.

Justice Alito disagreed with his colleagues in his willingness to confront the facts of the case as they were presented to the jury: Westboro and its members did not just engage in lawful picketing at the time of the Snyder funeral, but they subsequently posted an internet screed aimed personally at the Snyders, a screed the eight other justices disregarded.

There are two arguments that Snyder v. Phelps is a sound decision, despite the stylized facts on which the decision is premised. First, it is good for the Court with near unanimity to reaffirm basic constitutional values. The protection of speech we abhor is one of these. Second, important and new issues often need to percolate in the lower courts and among legal commentators before the Supreme Court decides. The First Amendment implications of internet communication is arguably such an issue.

On the other hand, the eight justice majority made Snyder v. Phelps an artificially easy case by punting on the tough issue, i.e., was the post-funeral website posting protected by the First Amendment? Only Justice Alito confronted this issue and held that it was not.

It is instructive to consider possible variations on this scenario as they could arise in the future. Suppose, for example, that an anti-abortion group demonstrates, similarly to the Westboro Church members, 1,000 feet from an abortion clinic behind a temporary fence and in accordance with police instructions. Suppose further that these demonstrators make no effort to enter the clinic. After the demonstration, these abortion opponents post a vicious attack on their website, mentioning by name the doctor who performs an abortion and the patient who receives one.

My preferred resolution of this hypothetical case, and the Westboro situation as it actually happened, would be to preclude the jury from hearing about constitutionally-protect speech (that’s what it means to be constitutionally-protected) and for the jury to hear only about the website attack which presumably does not enjoy the same First Amendment protection as the demonstration. I would also be inclined to preclude punitive damages in such settings.

As a matter of full disclosure, I note that Justice Alito was my law school classmate and that I supported his confirmation, just as I supported the subsequent confirmations of Justices Sotomayor and Kagan. I have disagreed with Justice Alito’s decisions in some cases (e.g., District of Columbia v. Heller) and have agreed with others (e.g., Citizens United v. Federal Election Commission). At the end of the day, I suspect that Justice Alito and I would have come to different conclusions about the ultimate resolution in Snyder v. Phelps.

However, the fundamental point remains that only Justice Alito recognized Snyder v. Phelps for the difficult case that it really was. The Snyders were not public figures but grieving parents who were viciously attacked by name through a website available to the world. Perhaps we want the internet to be a free-fire zone where anything goes including this type of personal attack on private citizens who did nothing to put themselves in the public domain. Perhaps not. The issue, dodged in Snyder v. Phelps, cannot be avoided indefinitely. Justice Alito was right to begin the conversation now.

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