Protests, Privacy, and the First Amendment

On March 2, the U.S. Supreme Court released its opinion in one of the most controversial cases of its term, Snyder v. Phelps. By an 8-1 majority, the Court ruled that under the First Amendment’s freedom of speech clause, protesters from the Westboro Baptist Church could not be charged with intentionally inflicting emotional distress by their protest of a Marine’s funeral. Though a jury had awarded the family of Lance Corporal Matthew Snyder millions of dollars, the high court upheld the circuit court’s dismissal of the verdict.
While politically controversial, the Phelps case represents the latest in a series of speech-favoring decisions from One First Street. Throughout the past two decades, the Justices’ support for First Amendment claims expanded substantially, and the trend has only accelerated under Chief Justice John Roberts. Nonetheless, speech’s victory may prove less than absolute. In particular, the narrow reasoning employed by the Chief Justice in the Snyder case illustrates the court’s unwillingness to create broad precedent from its speech cases and calls into question the Justices’ views on the limitations of the First Amendment.
A Free Protection
While enshrined in the First Amendment since 1791, the right to freedom of speech has expanded in practice over the past several decades. Harvard Law School professor Mark Tushnet told the HPR, “The Court is more receptive to claims that freedom of expression has been violated than it might have been a decade ago.” Indeed, over the past ten years, the Court has struck down laws against subjects as diverse as indecent Internet material and campaign finance regulation, all under the rubric of the First Amendment. Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, suggests that the Court’s increasingly firm endorsements of free speech emerge from two factors. First, Shapiro asserts, the Court’s swing Justice, Anthony Kennedy, is also the “most pro-free speech justice,” tilting close cases to the side of the First Amendment. Even so, the Court’s most recent decisions have hardly required Anthony’s vote. In addition to the 8-1 Snyder ruling, the Justices also voted 8-1 in United States v. Stevens that the First Amendment allows individuals to distribute videos depicting animal cruelty.
As a result, the Court’s favoring of free speech decisions may rest on subtler attractions. In Shapiro’s words, free speech claims prove “an easy way for the Court to see itself as upholding minority, individual rights against majoritarian wishes, which is harder with respect to other types of government programs or criminal prosecutions.” Both conservative and liberal Justices appear to favor free speech claims, albeit for differing purposes. In his concurrence to Citizens United v. Federal Election Commission, for example, Justice Scalia asserted that the right serves as a limitation on governmental power, while Justice Breyer in Morse v. Fredrick argued for the importance of balance in First Amendment jurisprudence.
The Private Justice
One exception to the court’s broad expansion remains: Samuel Alito. The junior Justice’s lone dissents in Snyder and Stevens marked Alito’s emergence as the Court’s free speech foil. Jeffrey Rosen, a professor at George Washington University Law School, argues that Alito’s seeming diminution of speech rights springs from the Justice’s belief in individual privacy. In Phelps, for example, the Justice based his dissent on the desire of the Snyder family not to be disturbed during the funeral.
By contrast, Shapiro interprets Alito’s lone dissents as based more on the grounds of decency than of privacy. “It’s probably more about what is tolerable in a free and democratic civil society, what goes beyond the pale, what is simply too outrageous to be protected,” Shapiro argues. Nonetheless, Harvard Law professor Richard Fallon points out that Alito is not “categorically hostile to First Amendment claims,” and in cases like Citizens United, Alito “has been as ardent a defender of free speech claims as anybody.” Nonetheless, when free speech is weighed against privacy interests, Alito often seems to come down on the side of privacy.
A Triumph for Free Speech?
Despite the ultimate judgment for the protesters, Snyder v. Phelps may prove surprisingly unhelpful for free speech advocates. As the opinion of Chief Justice Roberts stated, the Court refused punitive damages initially awarded to Snyder on the grounds of “intentional infliction of emotional harm,” yet the Court did not rule on the extent to which emotional harm can prove grounds for speech restriction. Indeed, Tushnet points out that Roberts included a footnote to the opinion noting that, after the protest, “Maryland passed a statute regulating the where and when of funeral protests.” As Tushnet argues, the opinion’s narrowness could allow future bans on funeral picketing to be upheld, provided the law is not based on the content of signs.
For his part, Fallon warns against interpreting the Snyder opinion too broadly or using it to evaluate the Roberts Court’s free speech jurisprudence. “The Court writes its opinion in such a way as to leave open the possibility that a statute written to exclude protesters from being within a certain physical distance or above a certain decibel level at military funerals might be constitutionally permissible,” Fallon claimed. Nonetheless, Roberts’s unwillingness to create sweeping precedent contrasts with previous speech judgments, such as New York Times v. United States, which offered implications that apply well beyond the case at hand.
When Expression Matters
The Court’s caution about endorsing speech more broadly is unfortunate, given that First Amendment defenders face major challenges ahead. In particular, the Supreme Court has offered almost no guidance on whether changing technology might alter the meaning of the First Amendment. In his concurrence to Snyder, Justice Stephen Breyer questioned whether Phelps’s protest would have been constitutionally protected if it had involved an Internet posting or other online attack. According to Fallon, Breyer was “gesturing toward a currently underdeveloped area of the law… If the protesters in this case had been conducting a targeted effort to bring anguish to the father of a service member who died by hounding him ceaselessly with email messages or telephone calls,” the ruling might have turned out differently.
Justice Breyer’s concurrence reveals that the doctrine of free speech, while broadly protected by recent courts, nonetheless may stand at a moment of uncertainty. Justice Alito’s dissent may also raise the question as to how the limits of privacy blur in an age of blogs, Facebook, and smartphones. In addition to defining the broader significance of Snyder v. Phelps with regard to freedom of speech, the Court will find itself applying the ruling to unfamiliar technological and social contexts. The nature of these decisions will define the Court’s First Amendment jurisprudence over the years to come.
Peter Bozzo ‘12 is a Staff Writer.