Sorting Through the Mess
I have been banging my head against my desk going through the primary briefs: the
Brief for Petitioner,
Brief for Respondents, and
Reply Brief (Petitioner). At first I thought I'd just try to do an objective review, but there is no way to do that in any reasonably concise way; this is a contentious fight consisting of quarrelsome and querulous arguments of fact combined with a ludicrous tangle of precedent. I could be at this until the Court finishes its deliberations without answering all of my own questions about it.
The central themes seem to be whether or not Albert Snyder is a public or private figure, if Westboro's protest assertions (e.g., "God Hates Fags", "God Hates You", &c.) have been or can be disproven, whether funeral attendance constitutes a captive audience, and to what degree the protest disrupted the funeral itself. At one point, the Brief for Respondents even cites About.com and Wikipedia regarding funeral etiquette; make of that whatever you will.
Thus, to return to consider (and, in one instance, reconsider) some issues of the thread:
Madanthonywayne said:
What I wonder is if there are not a number of justices interested in overturning the decision, why did they even bother to take the case? Clearly at least some of them feel there is an issue that needs to be settled here.
Initially, in response to this and another point, I suggested that the Court has a possible out: to remand the case back to the Fourth District with instructions to focus on findings of fact. In this case, the Justices might suggest an improper application of law according to either precedent or context of fact, or that the basic facts must be reviewed again. I consider this the most likely outcome.
Part of the problem is that while certain facts speak in Phelps' favor, other assertions in the Brief for Respondents are somewhat dubious. Among these latter is, primarily, the construal of Snyder as a public figure. Indeed, at one point, the Phelps brief argues that the response to their protest means Mr. Snyder was a public figure
before the protest. And whether or not Mr. Snyder was a public figure is a vital component of the Phelps' shield under the First Amendment, as they look to the famous
Hustler ruling as precedent.
I'm frankly amazed that none of these protesters have been attacked by grieving families.
According to the Brief for Petitioner, you need not be amazed:
Fred Phelps, Sr., candidly explained that his motive behind protesting military funerals was to seek revenge. According to Phelps, approximately three years before trial, members of the WBC were assaulted by Marines .... In retaliation, WBC members began protesting military funerals and have continually terrorized grieving military families since the alleged assault.
(6)
Even Rev. Phelps himself, according to that Brief, "admitted that grieving family members would be offended" by a sign depicting male homosexual intercourse, and the respondent's own expert admitted that the protest action,
"... interfered with the process that we go through of honoring our soldiers who die for their country and also could have surely interfered with the grieving process and allowing him to be a hero without any tarnish on his casket" .... In other words, the Phelpses' own expert witness conceded that their actions were intentionally targeted at Mr. Snyder and caused him harm.
(ibid)
So we come back to Psycho Bound's consideration of harassment and—
Superstring01 said:
I detest the "slippery slope" argument, but I'm loath to accept any restrictions on offensive speech, no matter how offensive it is on those very grounds. The Phelps clan was not harming anyone. They weren't even calling for violent acts. Just nasty, evil words.
—String's slippery slope point. The problem, as I see it, works like this:
If the Westboro protest was simply malicious revenge for an unrelated assault
and expected beforehand to be hurtful,
then the slippery slope argument falters under scrutiny. Falters, I say, but not necessarily fails. It would seem that Westboro's intention was to cause emotional distress, and if so, the issue of Albert Snyder and his family as public or private figures becomes absolutely vital. And here, we encounter contentious assertions of fact. The Brief for Respondent asserts:
After his son’s death, Petitioner talked to the media about his life, death, and funeral .... Petitioner published an array of details about his son, including the divorce of his parents and the fact he attended the Roman Catholic Church and his funeral was being held at his home parish .... Petitioner also described publicly how upset he was about the war, and told that he contacted the late Congressman John Murtha. Petitioner gave interviews to more than one media immediately after his son’s death, before the funeral. And, immediately after the funeral (being dissatisfied with how the funeral was covered), Petitioner contacted the media to complain, which led to more detailed coverage of his son’s life, death and funeral.
(5)
The Reply Brief scoffs at this representation:
Prior to the Phelpses’ unwanted involvement in Mr. Snyder’s life, Mr. Snyder received minimal media attention. He placed Matthew’s obituary in the newspaper and gave brief quotations over the phone to two local newspapers that printed articles each time a local individual died in combat .... The Phelpses suggest that this alone was sufficient to confer public figure status on Mr. Snyder.
(12)
And it gets even stranger. It is unfortunately a long section over the course of seven pages (46-52) of the Brief for Respondents that the Reply Brief characterizes thus:
... arguing that Favish’s recognition of a family’s privacy right to photographs of deceased soldiers and to “a good memory of the deceased” is inconsistent with the public’s interest in military issues .... The Phelpses’ logic, however, would confer public figure status on every military family who loses a loved one in war and chooses to publish an obituary. This Court’s jurisprudence neither commands nor invites such an absurd result.
(12-13)
Looking back to Madanthonywayne's suggestion that the Court likely has a specific reason for entertaining this case in the first place, it also seems worthwhile to consider SCOTUSblog's
Lyle Denniston ("Preview"):
Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.
If the Court sees some degree of malice and harassment,
then it could easily come down to who has the best lawyer. I'm still hard-pressed to see how the Justices might come down on Snyder's side outright—the best he can hope for is a remand order to the Fourth—but that's also because I'm not confining my personal consideration strictly to the briefs. That is, there are plenty of lawyers in this country who might be able to nail down the Westboro case, but I'm not sure whether or not they would want to make the argument. I couldn't say whether it's purely an ego trip that has Margie Phelps, the Reverend's daughter, acting as counsel of record for the Respondents.
It could be that the Court sees in the Fourth District's overturning of the trial verdict a dubious contrast between fact and law to the one, and the construction of the Phelps' argument to the other. That is, if the Westboro case was more soundly constructed, the Court might have no reason to consider the Fourth District's ruling.
That, of course, is speculative at this point, but one thing that strikes me is that the Brief for Respondents occasionally reads with a petulance more suited for Sciforums:
A rule of law giving a privacy right at the expense of words, which are not proven as false, because of a subjective claim of outrage, would implicate all of the concerns this Court has raised, as discussed above, about breathing room for free speech. (This is an entirely different scenario than, for instance, dragging a dead body through the streets, as referenced by the Court in Favish. That scenario is a non-speech example of protecting the memory of the deceased.) Attaching liability to words is particularly constitutionally-dangerous where, as here, the impact is to force a dissenting religious group in a little church to show what society deems “respect” for the deceased, when the church does not doctrinally agree. The Amicus Brief for Veterans of Foreign Wars, at p. 2, states as its mission having the entire Nation mourning for dead soldiers. WBC does not desire to join the nation in this public mourning, but should not be penalized for declining when joining the public debate about dying soldiers and their funerals, that is taking place in direct connection with their funerals (by subject matter and by location/platform).
(52-53)
A certain decorum is called for, of course, but I can certainly imagine a judge fighting to suppress the urge to reach down from the bench and slap Margie Phelps for that one. And, of course, it's the sort of argument even Jay Alan Sekulow or Gloria Allred wouldn't make; it takes a special disdain for the very
idea of society to shovel that one at
any court.
The
oral arguments are just brutal. Justice Scalia—and we might nod here to Trooper—invoked "fighting words" in an interesting exchange with Margie Phelps:
MS. PHELPS: Any non-speech activity like stalking, following, importuning, being confrontational, could indeed give rise to a cause of action.
JUSTICE KAGAN: Demonstrations outside the person's home, outside the person's workplace, outside the person's church—demonstrations, not disruptions, but saying these kinds of things: You are a war criminal, you—what—would—whatever these signs say or worse?
MS. PHELPS: My answer, Justice Kagan, is: No, I don't believe that that person should have a cause of action or would under your cases have a cause of action. You couldn't give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case.
JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.
MS. PHELPS: We agree that fighting words are less protected under the First Amendment.
JUSTICE SCALIA: Unprotected.
MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social—
JUSTICE SCALIA: Is that so? Do we know that?
MS. PHELPS: I beg your pardon?
JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.
Where—where do you get the notion that it has—that there has to be an imminent fight?
MS. PHELPS: I get the notion from the series of cases starting within 7 years after your Chaplinsky case with the Gooding case and on down through the Brandenburg case and on down—
JUSTICE SCALIA: Which say what?
MS. PHELPS: That say that—
JUSTICE SCALIA: The person was too remote? The fight was not—was not imminent?
MS. PHELPS: The—the definition, the working definition of "fighting words," is that they have to be words which by their nature are likely to incite an immediate breach of the peace and not occur in the context of some social, artistic, educational, or political kind of speech.
And if I may hasten to add, Justice Scalia, these Respondents were not charged with fighting words. The jury was not instructed to limit themselves to fighting words. No element of the tort under which liability attached included fighting words.
The words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues that the discussion was underway in this nation about dying soldiers, about the morals of the nation—
(27-29)
And the fighting words issue goes on, including Justice Scalia cracking a Quaker joke. But Ms. Phelps is definitely confident; yes, m'lady, you'll go with unprotected because that's apparently what the precedent says. And, indeed, as her discussion with the Court continues, she insists on Mr. Snyder as a public figure, for having "enter[ed] the public discussion"
(33) because he "went to the public airways multiple times in the days immediately before and immediately after" the funeral
(32). Justice Alito called out the issue of Snyder as a public figure
(34), and Ms. Phelps actually stumbled over the course of her answers, attempting to refocus the Court's broader consideration back toward Mr. Snyder himself, to the point that Chief Justice Roberts asserted himself in the exchange.
Without having actually
heard the arguments, though—that is, just reading from the transcript—one might presume the wrong tone. While Ms. Phelps did not stammer and hitch the way Mr. Summers did, there comes a point at which Justice Kennedy asserts himself in a fairly dominating manner while questioning her responses to Jutices Kagan and Alito
(41-42). And Justice Scalia follows immediately thereafter with a salvo returning to fighting words. None of the justices called her out on the point specifically, but I find an interesting contrast between the idea that the protesters were aware—according to the Brief for Petitioner—that the signs would be offensive to grieving family members and Margie Phelps' assertion that fighting words doctrine doesn't apply.
Justice Breyer, in a long-winded question
(45-46), tipped his hand perhaps more than the rest of his fellows:
So what I'm doing is suggesting a number of thoughts of ways of trying to do what I'm trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.
It is actually hard to discern, through the oral arguments, the Justices' sentiments toward the case itself. Lyle Denniston wrote in is preview of the arguments:
For a Court that so recently had refused to create a new exception to the First Amendment’s protection ... the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.
But on Wednesday, following oral arguments, he noted:
When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we—and can we—set aside our emotional reaction? If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a “funeral exception” to the right to speak out in public in outrageous and hurtful ways. It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices.
("Commentary")
And
David Savage, for the
Los Angeles Times, suggested that the Justices "sounded as though they are inclined to set a limit to the free-speech rule to permit lawsuits against those who target ordinary citizens with especially personal and hurtful attacks".
Garrett Epps, writing for
The Atlantic, described the hearing as resembling "a Celebrity Deathmatch between Lionel Hutz of The Simpsons and Ned Racine of Body Heat", and recalled the 1945 World Series between the Detroit Tigers and Chicago Cubs, of which one sportswriter said, "I don't think either one of them can win it". Still, though, he seems to think the Justices will be inclined in some way toward Snyder; perhaps fulfilling Denniston's argument preview, though, Epps would put the weight of that outcome not on the law itself, but on Ms. Phelps:
In Wednesday's high-profile argument in Snyder v. Phelps, two inexperienced pilots sailed into a legal Bermuda Triangle, where the compasses no longer pointed to magnetic North. It's possible that, once it recovers its wits, the Court will put this case in order; but in the courtroom at least, what seemed at 10 a.m. like a sure thing had become by 11 a.m. a head-scratcher ....
.... By the end, the Justices' comments gave the eerie impression that Margie Phelps might have singlehandedly managed to snatch defeat from the jaws of a seemingly all-but-sure victory ....
.... [A] competent second-year law student could have handled it. One would simply concede that Mr. Snyder is a private person. The issue is the kind of speech. The WBC's speech, disagreeable though it might be to the majority, was aimed at issues of American social and military policy. This kind of speech is fully protected by the First Amendment. Nothing in WBC's signs was directed at Matthew or Albert Snyder personally. Church members never approached the funeral or tried to disrupt it with noise; they did not interact with Mr. Snyder, who never even saw the signs until he read news reports; the "epic" was not sent to Mr. Snyder, simply published on the Internet. Under these circumstances, letting a jury assess a multimillion-dollar verdict is plainly permitting punishment for a distasteful message on a question of public importance. The Snyders' pain is the kind of pain free speech requires us to bear.
Thank you. Sit down.
But Margie Phelps spent most of her time arguing that Mr. Snyder is a public figure because he and his family had spoken to the news media about their grief for their dead son and their horror at the war in which he died. All he had to do was keep absolutely quiet. By making any public comment after Matthew's death, they became fair game for WBC. Over and over the Justices suggested, asked, begged her to assume that Mr. Snyder was not a public figure. Please, they seemed to be saying, we're not buying it, give us some other reason to vote for you. Over and over she refused."They step[ped] into a public discussion," she said.
They had it coming.
The unease on the bench was palpable. Perhaps most significantly, Justice Kennedy, the swing vote, asked whether WBC could simply "follow a particular person around, making that person the target of your comments." Phelps's answer was, in essence, I already told you they had it coming.
It may be that Margie Phelps by the hour's end had not kicked away her case. But her argument was so poor that I found myself wondering whether she even wanted to win ....
Certainly if the Court hands down an order to remand or, perhaps unthinkably as of a couple days ago, a victory for Snyder, many will question "the soon-to-be-legendary" (as Epps put it) Margie Phelps. But as the foundation of this case is centered around emotional values, we might pause to consider Epps' observation:
Trial lawyers often really do love their own clients and hate the people on the other side, and often can't shut up about it. Which it is why both sides would have done better to find dispassionate appellate lawyers, who might have saved us from the possibility that a disgusted Court may make a bad decision.
Personally, that point resonates; I still find myself wondering how it is that we might start erecting barriers to free speech according to the simple fact that most find something repugnant. Once upon a time, it was pornography. If the prudes had their way in the 1980s, it would have been music. Reverend Phelps leads a repulsive flock according to diseased ideas. But it is exactly that disgust so many feel toward Westboro Baptist Church that ought to caution against stifling them. As one who has long held unpopular ideas in close stead, I shudder to think what damage such a precedent could do. Freedom itself was once reviled; truth itself has before been locked in dungeons; and faith itself has been pierced by glowing pins.
What a grieving Albert Snyder suffers at the will of cruel arrogance is worthy of denigration, but by the light of truth and not the force of law.
____________________
Notes:
Summers, Sean E, et al. "Brief for Petitioner". Snyder v. Phelps. Supreme Court of the United States. (n.d.) ABAnet.org. October 7, 2010. http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-751_Petitioner.pdf
—————. "Reply Brief". Snyder v. Phelps. Supreme Court of the United States. (n.d.) ABAnet.org. October 7, 2010. http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-751_PetitionerReply.pdf
Phelps, Margie J. "Brief for Respondents". Snyder v. Phelps. Supreme Court of the United States. (n.d.) ABAnet.org. October 7, 2010. http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-751_Respondent.pdf
Denniston, Lyle. "Argument preview: Protest vs. privacy". SCOTUSblog. October 4, 2010. SCOTUSblog.com. October 7, 2010. http://www.scotusblog.com/?p=105700
—————. "Commentary: What role for emotion?" SCOTUSblog. October 4, 2010. SCOTUSblog.com. October 7, 2010. http://www.scotusblog.com/2010/10/argument-recap-does-emotion-win/
Supreme Court of the United States. "Oral Arguments". October 6, 2010. SupremeCourt.gov. October 7, 2010. http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-751.pdf
Savage, David G. "Justices appear set to limit funeral protests". Los Angeles Times. October 7, 2010. LATimes.com. October 7, 2010. http://www.latimes.com/news/nationw...6-court-funerals-web-20101006,0,3870903.story
Epps, Garrett. "Westboro Baptist Church's Surreal Day in Court". The Atlantic. October 6, 2010. TheAtlantic.com. October 7, 2010. http://www.theatlantic.com/national...o-baptist-churchs-surreal-day-in-court/64167/
See Also:
SCOTUSblog. "Snyder v. Phelps". (n.d.) SCOTUSblog.com. October 7, 2010. http://www.scotusblog.com/case-files/cases/snyder-v-phelps/
Correction:
The post previously incorrectly cited the Reply Brief instead of the Brief for Respondents.
