There was a short discussion about this in IRC earlier, and it hasn't been posted here yet, so... Snyder v. Phelps.
I don't know a lot about the Supreme Court, but Alito is my favorite justice right now.
I don't like the Phelps bunch either, but I can't argue with the outcome of the decision. This dispute is basically about picketing, which is the quintessential model of protected political speech--even if done toward a bad purpose. Westboro's protests were carried out lawfully in public, and constituted speech on a matter of "public concern". Courts tend to be very reluctant to
even get near the First Amendment, and so they draw the category of "public concern" fairly broadly--in fact, being on the wrong side of a matter of "public concern" (which no one contests WBC is) doesn't disqualify you from First Amendment protection. So long as the protest is lawfully carried out and no more than speech is involved, we have to take the racist protests with the Civil Rights Movement.
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 underlying 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, 109 S.Ct. 2533, 105 L.Ed.2d 342 (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, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).
I know this looks a lot like giving judicial imprimatur to WBC's reprehensible activities, but the alternative is setting a very, very dangerous precedent. Certainly there's a
moral distinction between WBC and, say, pro-democracy protesters, but all the
law sees in both cases is 1) public forum, 2) public concern, 3) no First Amendment exception*. That is, WBC and other claimants of First Amendment protection are similarly situated for the purposes of our First Amendment tests, and thus must be treated equally under the law. Personal feelings must give way to principle, which is how
Brown v. Board got a unanimous vote.
* Snyder argued that the speech at issue wasn't really public, but that it had been basically forced upon him as a "captive audience". Unfortunately, this exception is strictly limited to situations where the offending speech has been brute-forced into a private zone, such as your home. Compare this quote from the opinion:
In most circumstances, ?the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, ... the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.? Erznoznik v. Jacksonville, 422 U.S. 205, 210-211, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (internal quotation marks omitted).
With this quote from
FCC v. Pacifica, a TV indecency case:
To say that one may avoid further offense by turning off the radio when he *749 hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.
Of course, some First Amendment exceptions operate even in a purely public space--for instance, restrictions on porn theaters. In light of that, of Alito's arguments in dissent that WBC was less speaking on a public matter and more targeting the deceased in his private capacity, and of the likelihood that this holding will only embolden WBC in its reprehensible activities, I can definitely sympathize with Snyder. But I don't think he has the better of the law.
