I must confess that I’m mystified by the reaction against the Supreme Court’s decision in Snyder v. Phelps in some conservative quarters. Certainly, it was not popular: My New York Post column yesterday defending it got a mere 14 “likes” (down by hundreds, even thousands, from the norm), while on the radio I got exactly zero love from the callers for my absolutist stance on the First Amendment. The sentiment was strongly: “They try this at any funeral I attend and watch what happens to them.” Which is, of course, entirely another matter.
Vox populi, vox whatever. Who among us does not feel, emotionally, the same way? The Westboro “Baptist” “church” is loathsome. As Maj. Marco says of Lt. Raymond Shaw in The Manchurian Candidate, it’s not that he’s hard to like, he’s impossible to like. And so’s this bogus “church.”
Still, I remain puzzled, not only because it seems to me that the Court got it exactly right and Justice Alito got it mostly wrong. Conservatives would do well to remember that what goes around comes around, the shoe gets on the other foot, and every other applicable cliche has its day once you start carving out exemptions to a simple declarative sentence.
The Justice wrote:
Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. . . . It does not follow . . . that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. . . .
And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech
What? It’s not clear to me at all. The “intentional infliction of emotional distress” is a pretty capacious exception to the categorical “no law” of the First Amendment, is it not? Who is to decide what constitutes “severe emotional injury”? Don’t artists and writers do that all the time, at least implicitly? (Answer: yes.) And, whatever we think of the Westboros’ crackpot political positions, isn’t it also true that we are, right this minute, engaging a matter of great importance to the public debate? These are deep waters indeed, Watson.
I agree completely with Justice Alito and others that the venue for the Westboros’ inhuman and evil protests is completely inappropriate — which is exactly why it was chosen. As Alito noted, the press plays right into the Westboros’ hands with its heedless, sensationalist coverage; the media is certainly a complicit co-conspirator in this continuing outrage and ought to be ashamed of itself.
And the Court is correct in upholding the rights of municipalities to restrict access. If they want to confine the Westboros to a holding pen across the state line, that’s fine with me. Access is not speech. Cut off the oxygen of cameras and sound crews, and move them far, far away, and the Westboros become just another group of crackpots, baying at the moon — their free-speech rights uninfringed. But it’s important in evaluating this decision that we not get caught up in our own emotions and natural sympathies.
Instead, look on the bright side: If such vile and hateful “political speech,” however broadly construed, is protected (and the case turned on the political nature of the speech), doesn’t that clear the way for a major assault on the campus “speech codes” and, indeed, the very notion of “hate speech”?
It seems to me the Court just handed conservatives a major victory, if only we know what to do with it.