Swami G puts up another W

[Blogmeister’s Note: The Swami strikes again. Last November, our resident appellate oracle, Kevin Goldberg (a/k/a The Swami) predicted that the Supreme Court would side with the Westboro Baptist Church in the First Amendment face-off that was Snyder v. Phelps. (Disclosure: Swami G signed an amicus brief in the case on behalf of the American Society of News Editors.) And sure enough, in March that prognostication proved to be right on the money, as the Supremes held their noses and voted for Westboro, 8-1. Of course, the Swami had called it closer (5-4, maybe 6-3), but what the heck – he beat the spread, didn’t he? While no explanation is really necessary here, Kevin wants his loyal readers to understand (in the words of Mike LaFontaine), wha’ happened?]

As a top prognosticator, I’m used to getting it all the way right. So I was somewhat humbled when my prediction in Snyder v. Phelps was off by a couple of votes. Oh sure, I had the result right, but I misread three Justices – Kennedy, Thomas and, most blatantly, Chief Justice Roberts. (About Roberts, there was “no question in my mind” that he would be voting for Snyder. Oops.)

What went wrong? In retrospect, I probably got caught up in the inflammatory facts of the case. (You can read more about the background and facts in my prediction post). Maybe I was distracted by one of the most striking combinations of “compelling plaintiff” (Snyder, a grieving father of a slain U.S. Marine) and “deplorable defendant” (Westboro, a church that protests at funerals with obnoxious signs proclaiming, e.g., “God Hates Fags”) that I’ve ever seen. If sympathy can ever trump the First Amendment, this would be the case, and from their questions at oral argument and previous opinions, Kennedy, Thomas and Roberts were the most likely to succumb to that temptation.

Or so I thought.

In the end, the Court – including the three members I doubted – did the right First Amendment thing, as difficult and distasteful as that may have been given the facts of the case. The Court’s ruling (written by Roberts) is eminently predictable and not earth-shattering in the least.

So now that I’ve had a month or so to mull over the case (and to re-calibrate my crystal ball), here are some thoughts about what the Court’s decision means.

Turns out the Chief Justice is a First Amendment stud; Justice Alito not so much.   Conservative judges sometimes get a lot of flak for their First Amendment credentials (or lack thereof). That’s mainly due to the perception that they tend to favor considerations like “national security” and “morality” over free speech. During Roberts’s 2005 confirmation hearings, the Reporters Committee for Freedom of the Press published a review of his First Amendment views observing that “Roberts’ collected works leave cause for concern among free press advocates”.

But looks can be deceiving. As Chief, Roberts may have started slow, voting against student speech rights in the famous “Bong Hits for Jesus” case. But his opinions in last term’s United States v. Stevens and now in this case alleviate many concerns First Amendment advocates might have had. Indeed, I can’t remember as clear an endorsement of free speech as the conclusion of his opinion in Snyder v. Phelps:

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.

By contrast, Justice Alito – the lone dissenter – took a very different First Amendment tack: Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Context and emotion obviously mattered a lot to Justice Alito, who peppered his dissent with words like “malevolent”, “brutalize”, and “tumultuous” – and that was just the first full paragraph. He seemed to be attempting to shoehorn Westboro’s actions into the “fighting words” pigeon-hole of unprotected speech, likening those actions to a direct, face-to-face confrontation designed to provoke a violent reaction. (Think Chaplinsky v. New Hampshire, which Alito cited, but just once).  This is the second time in two years that Justice Alito has been the sole dissenter in a major First Amendment case. Assessing his dissent in United States v. Stevens, I observed that he has generally seemed to be paternalistic and protective of “society’s morals” in similar cases. Perhaps not surprisingly, he was very willing to side with the First Amendment in the Citizens United case involving campaign finance reform.

Snyder v. Phelps breaks no new legal ground. For all the controversy, the decision sets no new precedent.

One key legal issue that attracted considerable attention was whether the Court would extend the protections given to defendants in cases involving claims of intentional infliction of emotional distress. The last time the Court visited this issue – and gave a resounding victory to the First Amendment – was the famous Hustler, Inc. v. Falwell decision, arising from a lawsuit brought by Jerry Falwell. Falwell was a public figure, seeking damages from Hustler Magazine because it exercised First Amendment rights. The Court concluded that, because of his “public figure” status, Falwell had a greater burden to meet – a pro-free speech factor which benefited the defendant, Hustler.

The Snyders, on the other hand, were anything but public figures before this entire mess began. Would that – should that – alter the First Amendment analysis?

Media groups said the “who” was actually less important than the “what”. That is, the fact that the Westboro Baptist Church was speaking about matters of public concern required full First Amendment protection regardless of who the plaintiff happened to be. The Chief Justice (and seven of his colleagues) agreed. As a result, a larger universe of speech will receive full First Amendment protection in such cases.

The Chief Justice also affirmed the considerable breadth of what constitutes speech involving matters of public concern. In his view, such speech can “be fairly considered as relating to any matter of political, social, or other concern to the community”. So Westboro’s signs and chants – inarticulate, offensive and hateful though they may be – fell within that definition. In other words, the Court rejected the argument that the defendants’ claims about the political nature of their speech were just a smokescreen to cover the fact that that speech was nothing but offensive.

This is entirely consistent with previous First Amendment cases which instruct courts not to judge the value or good/bad taste of the speech at issue. One example: Texas v. Johnson where flag desecration was held to be protected speech, despite the dissent’s view that such conduct isn’t speech at all, but rather “the equivalent of an inarticulate grunt or roar . . . most likely to be indulged in not to express any particular idea, but to antagonize others.”

The effect is likely to resonate through all areas of controversial speech. Like it or not (and many people won’t), this is a strong victory for all offensive statements, including “hate speech”. It may also augment protections in other areas, like defamation and invasion of privacy, if the courts choose to minimize the impact of the plaintiff’s identity and focus instead on the need to protect the right of free speech.

The Westboro Baptist Church will protest more funerals as a result of this decision but will still be acting from afar.  Westboro Church elders Fred and Shirley Phelps and lawyer/daughter Margie Phelps now believe they have the blessing of both church and state for their protests – and, to an extent, they do. Not surprisingly, they have indicated they will “quadruple” their protests.  They are committed and they are savvy – and they understand the limits of First Amendment law. They have always abided by any “time/place/manner” restrictions that local jurisdictions may have imposed on demonstrations. Indeed, that was a contributing factor to their victory: Justice Breyer concurred with Roberts largely because Westboro had complied with all relevant laws and had had no effective interaction with anyone actually attending the funeral. The Chief Justice noted this as well, writing: “simply put, the church members had the right to be where they were”.

Perhaps bolstered by its victory, though, the church has indicated it plans to challenge the restrictions with which it has thus far complied. I think this reflects classic hubris on the Church’s part. Laws limiting protests near a funeral exist in 44 states. Such restrictions are routinely upheld as content-neutral restrictions not on the speech itself, but rather on the time, place and manner in which the speech is delivered. To get such restrictions tossed out, a challenger must ordinarily show that the restrictions are based on, and in fact intended to limit, the content of the speech itself.

If the Church does plan to attack such time/place/manner laws, I think it will be biting off more than it can chew. It won’t be able to rely on just a single case. Rather, it will have to challenge every state’s law individually. That means at least 44 separate cases (one in each state). In each case it would face high hurdles – such as demonstrating that the state-imposed limits are completely arbitrary or clearly overbroad. Those are hard standards to meet, since courts tend to defer broadly to legislative determinations relative to the need for, and precise limits imposed by, such laws. And even if any particular state’s laws don’t appear now to have an adequate legislative foundation, I can imagine state lawmakers are already reviewing those laws with an eye toward taking any action – from revising existing laws to enactment of whole new laws – necessary to protect them from successful court challenge.

Bottom line: I may have misread Kennedy, Thomas and Roberts, but this is one case where I’m happy to have been wrong.  Make no mistake: this was a strong victory for the First Amendment, no matter how unsympathetic the successful litigant (in this case, Westboro Baptist Church) might be. And the Justices’ near-unanimity, especially in view of the facts presented to them, gives rise to cautious optimism on the free speech front. Let’s keep our fingers crossed.