On the Huffington Post, John Paul Rollert contends that Justice Alito’s solo dissent in Snyder v. Phelps—in which the majority ruled that the First Amendment protects the Westboro Baptist Church from tort liability for its outrageous funeral picketing—embodies the very “empathy standard” that critics of President Obama have decried. I believe he’s mistaken.
Although you’d have difficulty discerning it from Rollert’s essay, the legal position that Alito endorsed is that the First Amendment “does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.” Relying on the Court’s 1942 precedent in Chaplinsky v. New Hampshire, Alito opined that “[w]hen grave injury is intentionally inflicted by means of an attack like the one here”—i.e., as Alito saw it, an abusive attack on a private figure rather than speech on a matter of public concern—“the First Amendment should not interfere with recovery.” It was entirely within that legal framework that Alito discussed and assessed the conduct of the Westboro Baptist Church.
I do not have a considered opinion whether Chief Justice Roberts’s majority opinion or Alito’s dissent got the law right. But the difference between the two opinions is a legal one, not a difference between dispassion and empathy. (Rollert also claims that “the facts simply don’t support” Alito’s position that Westboro intended to harm the Snyder family, but the matter is hardly clearcut, and Rollert doesn’t acknowledge that Alito argued that Westboro had “long ago abandoned any effort to show that [the] tough standards [under the tort of intentional infliction of emotional distress] were not satisfied here.”
Rollert also briefly contends that critics of Obama’s empathy standard have mischaracterized the standard. Rollert contends that Obama “has been absolutely clear that empathy is a tie-breaker, not a case-breaker” and that a justice “should rely on it only when what the law demands is fundamentally uncertain.” But, apart from the fact that there’s no sound basis for empathy to be a “tie-breaker,” what most folks soundly suspect—and what Obama’s support of Roe v. Wade and his newly found position against the Defense of Marriage Act illustrate—is that what Obama regards as the “truly difficult” cases are those cases in which application of traditional legal analysis won’t yield the result that Obama wants on issues that are important to him.