Originally Published: March 1, 2011
has ruled 8-1 in favor of the Westboro Baptist Church. Westboro is
infamous for its deranged, homophobic protests at funerals of falled
U.S. troops. In an opinion by Chief Justice John Roberts, the Court
refused to allow the universal disgust at Westboro’s views influence its
decision. Only Justice Samuel Alito was willing to radically curtail
free speech to punish Westboro.
The father of a fallen Marine sued the small church under claims of
harassment and an intentional infliction of emotional distress. I have
previously written that such lawsuits are a direct threat to free
speech, though I had serious problems with the awarding of costs to the
church in a prior column.
Roberts held that the distasteful message cannot influence the
message: “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.” Roberts further noted that “Westboro believes that
America is morally flawed; many Americans might feel the same about
Westboro. Westboro’s funeral picketing is certainly hurtful and its
contribution to public discourse may be negligible. 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.”
The Court in cases like New York Times v. Sullivan have long
limited tort law where it would undermine the first amendment. In this
case, the Court continues that line of cases — rejecting the highly
subjective approach espoused by Alito in his dissent:
Given that Westboro’s speech was at a public place on a
matter of public concern, that speech is entitled to “special
protection” under the First Amendment. Such speech cannot be restricted
simply because it is upsetting or arouses contempt. “If there is a
bedrock principle underly- ing the First Amendment, it is that the
government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable.” Texas v.
Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech
protection . . . is to shield just those choices of content that in
someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574
(1995).
The jury here was instructed that it could hold Westboro liable for
intentional infliction of emotional distress based on a finding that
Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a
highly malleable standard with “an inherent subjectiveness about it
which would allow a jury to impose liability on the basis of the jurors’
tastes or views, or perhaps on the basis of their dislike of a
particular expression.” Hustler, 485 U. S., at 55 (internal quotation
marks omitted). In a case such as this, a jury is “unlikely to be
neutral with respect to the content of [the] speech,” posing “a real
danger of becoming an instrument for the suppression of . . . ‘vehement,
caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U.
S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is
unacceptable; “in public debate [we] must tolerate insulting, and even
outrageous, speech in order to provide adequate ‘breathing space’ to the
freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S.
312, 322 (1988) (some internal quotation marks omitted). What Westboro
said, in the whole context of how and where it is entitled to “special
protection” under the First Amendment, and that protection cannot be
overcome by a jury finding that the picketing was outrageous.
Justice Samuel Alito again gave little credence to concerns over the
constitutional rights raised in the case. He insisted that “[i]n order
to have a society in which public issues can be openly and vigorously
debated, it is not necessary to allow the brutalization of innocent
victims like petitioner.” Alito did not care that the protest was part
of the bizarre religious and political beliefs of the Respondents:
Respondents’ motivation—“to increase publicity for its
views,” ibid.—did not transform their statements attacking the character
of a private figure into statements that made a contribution to debate
on matters of public concern. Nor did their publicity-seeking motivation
soften the sting of their attack.
It is precisely the type of extreme analysis that led some of us to object to Alito’s confirmation. (For a prior column, click here)
Alito does not show how we will distinguish between types of speech
that he finds brutal and acceptable. It is precisely the type of
slippery slope of analysis that we sought to avoid. Alito offers little
compelling analysis in erasing the bright line protecting free speech.
Indeed, his conclusion appears driven more by anger than analysis. His
approach comes close to a content-based approach that would deny free
speech protection to those who are most in need of it. We do not need
the first amendment to protect popular speech. It is there to protect
those who speak against the majority — those viewed as brutal and
obnoxious by people like Alito.
Here is the opinion: 09-751
Jonathan Turley
Link to original article: http://jonathanturley.org/2011/03/02/supreme-court-rules-in-favor-of-westboro-church/#more-32542
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