“And thus the native hue of resolution is sicklied o’er with the pale cast of thought.”
My older son recently asked me my opinion in the case of Snyder v. Phelps. Pleasantly surprised that he was taking any interest whatsoever in any Supreme Court cases (for reasons I subsequently discovered and will explain below), I had to admit I had neither an opinion nor, truth be told, even a rudimentary knowledge of the facts of the case. He explained then that the Phelps in question was the notorious disbarred attorney and Westboro Baptist Church pastor, Fred Phelps.
Ah, yes, Mr. Phelps and his merry band of homophobic religious fanatics. I explained to my son that I have paid about as much attention to Phelps, et al. as I do to the Jerry Springer Show or, for that matter, to most of the more politely nuanced but no less bigoted or better supported opinions of some of our occasional commenters here. Anyway, for those who share my rational ignorance in such matters, here is an edited version of the inerrant Wikipedia’s statement of the case:
On March 10, 2006, WBC picketed the funeral of Marine Lance Corporal Matthew A. Snyder, who died in combat in Iraq on March 3, 2006.The Snyder family sued Fred Phelps for defamation, invasion of privacy, and intentional infliction of emotional distress..On October 31, 2007, WBC, Fred Phelps and his two daughters, Shirley Phelps-Roper and Rebekah Phelps-Davis, were found liable for invasion of privacy and intentional infliction of emotional distress. A federal jury awarded Snyder’s father $2.9 million in compensatory damages, then later added a decision to award $6 million in punitive damages for invasion of privacy and an additional $2 million for causing emotional distress (A total of $10. 9 million). The organization said it wouldn’t change its message because of the verdict.
The lawsuit named Albert Snyder, father of Matthew Snyder, as the plaintiff and Fred W. Phelps, Sr.; Westboro Baptist Church, Inc.; Rebekah Phelps-Davis; and Shirley Phelps-Roper as defendants, alleging that they were responsible for publishing defamatory information about the Snyder family on the Internet, including statements that Albert and his wife had “raised [Matthew] for the devil” and taught him “to defy his Creator, to divorce, and to commit adultery.” Other statements denounced them for raising their son Catholic. Snyder further complained the defendants had intruded upon and staged protests at his son’s funeral. The claims of invasion of privacy and defamation arising from comments posted about Snyder on the Westboro website were dismissed on First Amendment grounds, but the case proceeded to trial on the remaining three counts.
In his instructions to the jury U.S. District Judge Richard Bennett stated that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements, and that the jury must decide “whether the defendant’s actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.” …
WBC sought a mistrial based on alleged prejudicial statements made by the judge and violations of the gag order by the plaintiff’s attorney. An appeal was also sought by the WBC. WBC has said that it is thankful for the verdict.
On February 4, 2008, Bennett upheld the ruling but reduced the punitive damages from $8 million to $2.1 million. The total judgment then stood at $5 million. Court liens were ordered on church buildings and Phelps’ law office in an attempt to ensure that the damages were paid.
An appeal by WBC was heard on September 24, 2009. The federal appeals court ruled in favor of Phelps and Westboro Baptist Church, stating that their picket near the funeral of LCpl Matthew A. Snyder is protected speech and did not violate the privacy of the service member’s family, reversing the lower court’s $5 million judgment….
A writ of certiorari was granted on an appeal to the Supreme Court of the United States….
The Court hears oral argument this week.
If you are interested in analysis of the legal arguments you are welcome to look elsewhere. Indeed, you need look no further than the link to the various Amicus briefs submitted. (Does it or should it bother you that 42 senators and 48 states filed briefs essentially in support of restricting Phelps & Co.’s freedom of speech? Does it or should it bother you that the overwhelming majority of legal scholars, the ACLU and the Anti-Defamation League contend in effect that the First Amendment bars the Snyder family from any legal remedy here?)
You can get into the legal weeds of “captive audiences” and “public figures,” the legal pedigree of the tortious infliction of emotional distress and so forth, but I am frankly more interested in how a case like this strains the moral intuitions of liberals and conservatives alike. Even among liberals, one has to be a bit of a free speech fanatic not to see at least some merit to the notion that a civil respect for the deceased and his survivors requires placing some limits on “expressive conduct” so outrageous that it “shocks the conscience.” Then again, isn’t it generally presumed to be a core conservative position that the state has no business interfering in the free exercise of religion or, at the very least, religious speech?
For that matter, is there an obvious libertarian position here?
I don’t think so. And the reason I don’t is because limiting the extent of state control over individual conduct does not per se go to what rights and liberties such individuals are to enjoy vis a vis each other. That is, while it is clear on even the most cursory examination of the First Amendment that the state could not enjoin or punish Phelps and the WBC for their expressive conduct, it by no means follows that such conduct should not be seen as in infringement of the private privacy rights of the Snyder family. Maybe yes, maybe no, but not obviously in either case, let alone necessarily even on strict libertarian grounds. Private interests conflict. Law aside, private moral rights conflict. How the law is to sort out and balance these private interests and moral rights is almost always an open question even for libertarians.
On balance, although I will not offer my argument for it here, I grudgingly must side in this case not so much with Phelps but against Snyder . But I also acknowledge that doing so deeply troubles me. Just as Irving Kristol once defined a neoconservative as a “liberal mugged by reality,” one’s dispassionate commitment to principles depends at least to some extent on whether one’s own ox is being gored by those principles. So I promised to explain my son’s unexpected interest in this particular point of constitutional law.
Yesterday morning I drove him to the airport with orders to report to the Marine Officer Candidate School at Quantico, Virginia. The course is deliberately grueling both physically and psychologically and I have no idea whether he will complete it successfully and accept a commission or voluntarily drop or involuntarily be dropped prior to graduation. The decision was entirely his, the reasons for that decision were entirely his, and his mother and I can only respect his autonomy, worry about him and wish and pray for his safety and success. But the world is not a safe place these days for Marine junior officers and it would be dangerously naive to think otherwise.
There are, of course, hundreds of thousands of parents today whose sons and daughters have joined the military and been sent in harm’s way. And as many or more parents of “the enemy” who would grieve the death of their children just as deeply. On a personal level it is entirely irrelevant what one thinks of the justice or wisdom of U.S. foreign policy or the overall cost/benefit analysis of our Forever War on Terrorism™ when the issue at hand is the life of one’s own child who has volunteered for military service.
Thus I find myself suddenly and unexpectedly having grounds not only to sympathize but also to empathize in some small way with the Snyder family. It doesn’t change my convictions regarding how I believe the Court should rule, but the prospect of having unintentionally to support Phelps as a result does turn my stomach.