02 March 2011

Westboro Baptists prevail at the Supreme Court, but questions remain

Today's Supreme Court decision in favor of the Westboro Baptist Church is just another indication of how difficult it is to read the Court, especially during oral argument.  A good deal of the oral argument focused on the distinction between a public figure and a private one, and public speech vs. private speech, ostensibly in the context of both the Westboro Baptists signs, but also the Internet "epic" posting.

It turns out that, despite its discussion during oral arguments, the "epic" was never even considered by the Court.  According to footnote one of Chief Justice Robert's opinion:
A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the  Snyders, interspersed among lengthy Bible quotations.  Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari.
In the context of this statement, the Court's ultimate result is wholly unsurprising.  When I wrote about this case back in January, I thought the Court would lean in Snyder's direction not because of the signs, but because of the epic:
...But it is much more about an "epic" or online posting that the Westboro Baptists made about Matthew Snyder which was personally about him, and directly addressed to him and his parents.
This case is about the clash between free speech and if and when that speech infringes on the Snyder’s personal interests protected by Maryland tort law.  To the extent that the Westboro Baptists' "epic" speech was private in nature (in other words, about Matthew specifically, and not public issues) and directed toward a private individual (Albert Snyder), it likely deserves less protection than otherwise pure political speech.  And to the extent that they may have intentionally caused emotional distress to Albert Snyder, the Westboro Baptists' speech may be are liable.
[The] oral argument...will give you a better sense of the issues surrounding the case and why it's about more than just the signs.
I have to believe that if the Court considered the epic, as Justice Alito did in his dissent, the outcome may very well have been different.  As it was, by focusing solely on the signs, the speech became public and Snyder's burden became that much higher.  And as a result, the holding is considerably narrow.
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