Tuesday, February 22, 2011

First Amendment Showdown: The Right to Free Speech vs. The Right to Privacy

By Meagan Armstrong

How will the U.S. Supreme Court rule in Snyder v. Phelps, the controversial funeral protest case? This case pits two First Amendment rights against each other: the right to free speech and the right to privacy. The Court is expected to render its opinion sometime in June 2011. Several onlookers have opined that the Court will decide that the right to privacy does not trump the right to free speech in the context of a funeral. Kevin Goldberg, a First Amendment attorney at Fletcher, Heald & Hildreth, predicts how each Justice will vote:

I’ve got it at 5-4, maybe 6-3, in favor of Phelps. 

Here’s how I break it down.

Clearly for Snyder:
There’s no question in my mind that Justices Alito and Roberts will be voting for Snyder. 
Alito is the weakest on the current Court when it comes to the First Amendment. He was the only Justice who voted to uphold a clearly overbroad law in United States v. Stevens; his concern appeared to center on concerns of morality and proper behavior, rather than First Amendment interests. 
Despite some indications that Chief Justice Roberts may not be that bad on First Amendment cases, in the Snyder argument he seemed convinced that the tort of IIED could exist even where a matter of public concern exists. One question he asked really stood out. During Phelps’s argument, Roberts asked:
[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?
This indicates to me that the Chief Justice is not willing to foreclose as a matter of law the possibility that an IIED claim can permissibly be pursued when a private figure plaintiff is suing based on speech on a matter of public concern.

Likely for Snyder
Justice Kennedy is also one who is generally favorable to the First Amendment, but he seemed particularly concerned that allowing groups like the Phelpses and their church to escape liability would open the door to everything short of outright stalking and harassment. He described the Phelps position as advocating the ability to follow any citizen around at any point, and noted that “torts and crimes are committed with words all the time.” Taking these observations together, I feel that he’s wary of giving unfettered rights to inflict insult in all situations.

Clearly for Phelps:
Justices Ginsburg, Kagan and Sotomayor seem firmly in the Phelps camp. 
Ginsburg was “up in the grill” of Snyder’s attorney, Sean Summers, from the get-go (the term is in quotes because, oddly enough, Margie Phelps used that term three times in her oral argument to describe the difference between, on the one hand, protected speech and, on the other, unprotected IIED or “fighting words”). Ginsburg especially seemed unconvinced that protesters who complied with every time, place and manner restriction put upon their speech could later be held liable.
Justice Kagan highlighted the portion of Hustler quoted above. I think she is concerned about subjectivity and I think she’s not willing to impose liability in this case.
Justice Sotomayor also seemed skeptical about the public figure/private figure distinction. She noted at one point:
[U]nder what theory of the First Amendment would we do that? What [Supreme Court decision] would stand for . . . the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Likely for Phelps
Justice Breyer is a little tougher. Despite being tagged as a “liberal” member of the Court, he isn’t rock solid on First Amendment protections. But he’s still pretty good. For me, the key moment occurred when he seemed to be seeking a way to protect this speech by allowing some liability but not where matters of public concern are involved. (You can find this moment at pages 45-46 of the transcript.)
But Justice Scalia was the real revelation to me. As usual, he was an active questioner, launching into both attorneys. But everything crystallized – and I think the case might have tipped to Phelps – in this exchange during Summers’s rebuttal:
MR. SUMMERS:  The court – the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not. There was a comment earlier that all the signs were presented. Well, all the signs were presented by the Respondents, not by Mr. Snyder. So we -
JUSTICE SCALIA:  I guess that that kind of a call is always necessary under – under the tort that you’re – that you’re relying upon. The conduct has to be outrageous, right?
MR. SUMMERS:  Correct.
JUSTICE SCALIA:  That always requires that kind of a call, unless the tort is unconstitutional, as applied to all – all harm inflicted by words.  
I’m sensing that Justice Scalia is concerned that Snyder’s position requires consideration of the message’s content in determining whether there is outrageousness. He’s always been concerned with regulating speech based on a particular viewpoint, yet that’s what Mr. Summers seems to be advocating. There’s no way that Scalia will agree with this. If I’m right, he definitely provides what could be the crucial vote for Phelps.  

Justice Thomas. The guy didn’t ask a single question (again). Sometimes he loves the First Amendment, but sometimes he comes way out of left field, especially in cases where he can view himself as the protector of a “weak” constituency. (Check out his concurring opinion in the "Bong Hits for Jesus" student speech case in which he went so far as to advocate a return to the 19th Century, when schools basically governed every aspect of their students’ lives.) His paternal streak might say that the government should step in where funerals are involved.
It’s my uncertainty about Thomas’s vote that keeps me from a conclusive prediction as to the vote split – 5-4 or 6-3 – but, if my other big guess (that would be Justice Scalia) pans out, the Swami sees a victory for Phelps and, more particularly, the First Amendment.

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