The Compassion of Justice Alito

I have previously criticized Supreme Court Justice Alito in these pages, but I am here to praise him today. Below is the opening of his eloquent and to me persuasive dissent in Snyder v. Phelps.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.

The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.”

A most respectable friend told me recently of his discovering, in mid-life, that his kind, loving, hard-working Italian-American father was on friendly terms with the Mafia. Although there had been hints throughout his childhood of such an association, it did not become clear until his father’s funeral. At the very end of the service, a single black limo drove up and a single capo came out of the back seat, walked up to him and said quietly “I want you to know how much we respected your father, and that we share your grief”. The capo then turned around and just as quietly left. As my friend put it “Sure, they kill people and they engage in extortion, graft and loansharking, but even La Cosa Nostra knows not to make a spectacle at someone’s funeral.” Indeed.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College Lonon. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over ten thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

54 thoughts on “The Compassion of Justice Alito”

  1. There is settled precedent upholding bans on targeted residential picketing, in part because a person has the right to the quiet enjoyment of her home. I would have liked to see the Court recognize a person’s right to the quiet observance of a family member’s funeral. Of course the distinction is legislative placement of time, place & manner restrictions, rather than judicial. But the judiciary has been delineating common-law rights for a thou — well, not a THOUSAND years. But close!

  2. The issue is not whether Phelps brutalized Snyder. The issue is whether he has a right to do so, or whether the applicability of the First Amendment depends upon the offensiveness of the speech.

  3. But offensiveness *is*, in our system, a variable that influences when speech rights will be protected. We recognize certain torts on the basis of emotional distress that is caused by speech, for example.

    And we balance the right to free expression with other considerations, such as the rights of those that are targets of the speech — an example being the bans on residential picketing that I mentioned earlier.

    Another longstanding test we use for speech restrictions is whether other outlets are available for the expression. Other outlets for expression were available in abundance to the defendants. But other outlets for expression were not available to those attending the funeral.

    The Court could have ruled differently and been within the confines of our law.

  4. The question is whether the restriction on speech is based on the content of the speech or the time, place, and manner of the speech. In Frisby v. Schultz, the restriction on the residential picketing case was upheld as a time, place, and manner restriction. Had the demonstrators been, say, marching and banging drums at 2 a.m. to celebrate the resident, they still would have been banned. In Snyder v. Phelps, had the demonstrators been properly mourning the death, they would not have been held liable.

  5. IIRC, the Court’s opinion noted that the protesters were at such distance from the funeral ceremony that Snyder didn’t even see what was on their signs until watching the TV news later.

    On that fact, it’s difficult to make a case that the protest disrupted the funeral. So the question was purely one of targeting speech. Haters gonna hate, and the 1st Am lets ’em do so.

  6. Next time Phelps shows up at a funeral, there needs to be a Marine gunnery sergeant who has been a Drill Instructor and can bellow at about 120 decibels and is fluent in verbal abuse of the kind that has traditionally been inflicted on new recruits (picture Lee Ermey in Full Metal Jacket). He gets into Phelps’ face and the confrontation goes something like this:
    KANSAS? AIN’T NOTHING IN KANSAS BUT STEERS AND QUEERS! I DON’T SEE NO HORNS, SO THAT KIND OF NARROWS IT DOWN! YOU LOOK LIKE A LIMP WRIST TO ME!
    DO YOU THINK I’M SEXY? I THINK YOU’RE GETTING A HARD ON!! WHEN YOU GO OUT TO THOSE BATHHOUSES, DO YOU GIVE A FREE REACHAROUND OR DO YOU CHARGE EXTRA??

    Phelps is suddenly on the receiving end of something he did not expect. If he is provoked enough to take a poke at the DI, the latter responds, “IS THAT YOUR BEST SHOT? YOU HIT LIKE A GIRL! I THOUGHT YOU WERE A LIMP WRIST!!”

    With its alpha male taken down, the Westboro group might have a disincentive to pursue its favorite pastime. They need to learn to dread something, and being accused of being that which they hate might be unpleasant to them.

    Perhaps this has been tried. I have not heard that it has. A sudden pattern disruption could alter the dynamics of the situation. Not to mention being great street theater.

  7. The text of the 1st amendment is pretty clear:
    Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble…
    (elisions are other terms just adding to the list)

    If the Westboro nutters could be forbidden from assembling and expressing themselves 1000 yards away and out of sight, what *would* be acceptable? 2000 yards? 5 miles?

    I just wish the supremes had been similarly concerned about the banning of protests near GWB’s speeches back in ’04.

  8. Foster Boondoggle,

    The text of the First Amendment is not pretty clear. Like all texts, it must be interpreted. No one interprets it to apply to, among other things, perjury, treason, copyright infringement, threats of violence against individuals, false advertising, conspiring to commit crimes, or offering bribes (other than campaign contributions). There are no First Amendment absolutists.

  9. I was going to make the same point Anderson did. The majority appears to have given due consideration to the context of the offensive speech.

    Nonetheless, I agree that the Alito dissent is compassionate. Part of what makes the Court such a great institution is that the totality of the case record includes the various opinions. That totality often results in the proper weighing of the various issues and contributes to the ongoing development of our Consitutional Law.

  10. Ed: there is a fair case to be made that precisely what you describe is what Phelps and his ‘church’ want to provoke, so as to be able to sue the people responsible. That would account for a lot of their behavior, such as the fact that nearly everyone in his family is a lawyer, that he alerts the media in advance of his appearances, that his representatives stay on public space and are careful never to directly insult any specific person, but only to characterize ‘fags’, ‘soldiers’, and so on, in the abstract. A better response, and one more in keeping with the First Amendment, would be Romaine Patterson’s Angel Action idea: volunteers donning large wings and robes and standing between the Phelps crew and the funeral to shield the mourners from the signs. Doesn’t do much for the noise, but the show of volunteer support at least offers the bereaved a feeling of solidarity.

  11. Interesting to contemplate how this case goes if the equally offensive speech and media circus was being directed at a corporation such as Monsanto or Citibank or BP.

  12. Maurice is right: the phelps clan is a bunch of lawsuit trolls. They regularly sue people who touch them in the course of their “protests” and municipalities where they are touched (for failing to protect them). (In fact, it’s pretty telling that advocates of tort “reform” rely on urban legends rather than just pointing the WBC and trolls like them.) And Alito’s argument, if implemented, would decimate all manner of speech (just as long as someone middle-aged and white felt appropriately brutalized) that many of us consider necessary and appropriate.

    So I’m going to read Keith’s last sentence as a statement about the proper role of “civility” in the national discourse.

  13. When the “compassion” of Justice Alito and the “manners” of La Cosa Nostra line up on an issue, I think I would hesitate a little more, before giving an endorsement.

  14. Alito’s argument about offensiveness may have been off-base, but there were other ways to get a result for the plaintiff.

  15. I disagree that Alito did this out of compassion. He just dislikes the Phelps, so he construes the law so that he can get what he wants. According to him, the First Amendment doesn’t provide much protection in this case, a classic case of speech in a public venue (public street). But in Citizens United, Alito says corporations get unlimited protection to spew unlimited amounts of money in venues unimagined in 1790.

    It’s all a matter of doing what he wants.

  16. Why do I doubt that Justice Alito would have expressed similar compassion had the plaintiff been Judy Shepard?

  17. Alito is wrong on this. I think the majority got it right. I think it’s worth noting this was 7-1.

  18. The excerpts of Justice Alito’s dissent I have read do nothing to dispel my impression that he is an authoritarian. This dissent may well display his compassion, but I don’t like the implications of it any more than I like those of some of his less compassionate opinions.

  19. I like the result he got, but the way he reached it was inconsistent with his views on judicial activism.

    Not that judges haven’t been making English law for 600 years.

  20. As someone else said, this case is not analogous to residential picketing — Snyder didn’t sue because the funeral was disrupted, he sued for intentional inflication of emotional distress because of what the picketers were saying, directly or via signage. He didn’t even see or hear what that was until later, on tv or the internet. His suit is simply an effort to collect damages based on the content of what Phelps and company said during the course of their protest. The funeral prompted the protest, but the protest was on public property and well out of sight of the funeral.

    Yesterday, a bunch of protesters stood outside a church in Philadelphia and “disrupted” the Ash Wednesday service of Cardinal Rigali, as a sign of protest against the victims of sexual abuse. Do individuals who are upset by the implication that they are complicit in sexual abuse have the right to sue?

    Phelps is odious. But the burden of putting up with his antics pales in comparison to the burdeen of putting up with the kinds of restrictions Alito would countenance.

  21. It is correct to say that the first priority in dealing with the Kansas homophobes is to protect the bereaved families from exposure to them. Maurice is correct to note that Phelps and Co. are a bunch of lawyers and have been careful to avoid anything actionable. However, I am not sure that what I describe is what they want to provoke.

    It is desirable to make them wish they had stayed in Topeka, so that future military funerals can be conducted in peace. The six-foot-four gunnery sergeant need not directly attack any individual. He could shout things in their general direction like, “WERE YOU LOOKING AT MY CROTCH? ARE YOU ONE OF THOSE?? SOMEONE AROUND HERE IS GETTING AROUSED!! I SEE PEOPLE HERE WHO COULD SUCK A GOLFBALL THROUGH A GARDEN HOSE!!”

    He would not be insulting any specific person. He would go nowhere near them, using only the volume of his voice (or a megaphone) to get at them. He would be exercising his First Amendment rights, and if this became unpleasant enough to Westboro, they just might try to sue. They would lose in court. Perhaps they could exhaust their fortune on appeals to the Supreme Court, where they would hear that the Bill of Rights applies to other citizens too. The Constitution protects them from legal action, but not from getting a taste of their own medicine. If they dislike it sufficiently to try anything stupid, so much the better. If they stop having fun going to funerals, that is the best outcome of all. Albert Snyder has predicted that there will be gunfire at some future funeral. This need not happen. Maybe a pattern disruption will serve a useful purpose before there is violence.

  22. Since my reply got deleted, I think I’ll clarify it: Every day in this country, people get brutalized for real. Prison rape, children being bullied, muggings. To describe remarks made out of hearing, a quarter mile away, as “brutalizing” somebody is a dire insult to every person who’s ever ACTUALLY been brutalized. It trivializes the contusions, the splattered blood, the decades spent in phobic withdrawal.

    Brutalized? Anybody who’s ever been brutalized wishes like hell they’d merely been the subject of a remote, peaceful protest.

  23. If it is legal to disrupt a protest by “counter-speech,” which is offensive to the protesters and/or too loud, one wonders if it would even be necessary to deliver the counter-speech via a human agent. What about a machine that is programmed to speak counter-speech slightly above the decibel level of the loudest protester and at the exact moment when any protester is speaking. The machine would be smart enough to counter the protester’s use of a machine to get their point across. The recording would be changed each time with counter-speech suitable for the actual protest targeted. The speech and counter-speech would cancel one another so that anyone listening would hear unintelligible sounds. If “free speech” includes the right to get your message out or heard by others, why wouldn’t or shouldn’t tactics used to disrupt free speech (and that result in neither protesters’ nor anti-protesters’ messages being heard) whether delivered through a DI or a machine be illegal.

    Finally, should it make a difference whether the machine (or human anti-protesters) are for hire or an actual group that takes issue with the protesters?

  24. Alito’s rhetorical game here, as Brett Belmore has pointed out repeatedly, is the use of “brutalize.” He also wrote, “Respondents brutally attacked Matthew Snyder.” Alito intentionally elides the difference between words and blows. There is no First Amendment jurisprudence that does this.

    I have to say that I tend to agree with Alito’s result. This is not a prior restraint case or a criminal case. In this case, the family of the deceased sued the church for money damages, and they admittedly had met the standard for the state law tort claim of intentional infliction of emotional distress. I see no reason why the first amendment should bar that claim. We permit all sorts of intentional tort claims that are the result of speech (fraud, false advertising, trademark infringement, libel) and I’m not persuaded that the values protected by the First Amendment required the Court to invalidate this claim.

    But I do think that Alito’s rhetorical turn is unnecessary and dangerous, and not the least bit persuasive.

    BTW, the Mafia story is cute but “even a professional killer respects the sanctity of funerals” is not to my mind a compelling argument.

  25. Oh, and JMG – a corporation doesn’t have a cause of action for intentional infliction of emotional distress. The law does dimly understand (even after Citizens United) that corporations aren’t quite the same as real people. So your hypothetical couldn’t happen.

  26. So, the point here isn’t to deliver a message, but just to prevent a message you don’t like from being delivered? You don’t see any problem with that, from a First amendment standpoint?

  27. Bloix, the problem with your argument is this sentence from the majority opinion: “Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.” If we allow Snyder to sue under those circumstances, then wouldn’t we have to allow him to sue if Phelps published an op-ed expressing his venom? One ought to be able to sue if Phelps disrupts a funeral, but not if Phelps merely says something that causes distress.

  28. I think I side with the majority on this one, but I guess I have a general question, which is, isn’t harassment generally illegal? What makes these actions not harassment? In any case, I don’t think I’d be upset if Alito’s opinion had won out, and the case determined some sort of right to grieve.

    Also, to Brett with regard to the “brutalize” comments: it’s a good reminder how many teen suicides we’ve had in the news in the past year because of bullying and taunts. Somehow, I imagine that people who have been victims of physical violence would have MORE sympathy for those who are verbally bullied and, yes, brutalized, than the general population would. I think it’s bizarre that you would think a victim of physical violence would privilege their own assault over someone else’s, and also that you think such a response would be universal. Hate is hate.

  29. And here I thought I was the only one who was at a funeral where that happened (last paragraph).

  30. Bloix, it would not have to be an IIED claim, corporations are expert at using SLAPP suits against real people who dare oppose them.

  31. I don’t understand why Keith went after Brett as a “troll”. The reality is that Alito’s dissent was complete BS. It’s not based in law–and compassion is as fake as his nonpartisanship. For folks who think that Alito was compassionate, try a little thought experiment–would he have sided with the Phelpses if they were nailed for similar tactics in front of Planned Parenthood clinics (something they’ve engaged in previously)? I have a simple answer–not on your life! Under different circumstances, Alito would be standing next to them, shouting the same slogans. Not compassion. Not even close.

    The decision was not a difficult one. The reason it rose all the way up to SCOTUS was because the point of First Amendment protection needed to be made. And the majority opinion was on solid grounds. Alito had no constitutional argument. If anything, he demonstrated his feebleness as a constitutional jurist. Scalia often goes off the reservation with his opinions, yelling at everyone (sometimes for lack of courage, sometimes for other reasons), but, at least, he always tries to couch his feelings in a constitutional framework. Alito did not even try to that and I am not sure he has the chops for it.

    Bill O’Reilly had an exchange with Megyn Kelly over the case when SCOTUS first took it up. O’Reilly was essentially representing the same opinion–without the court puffery–as Alito. Kelly excoriated him for being obtuse, telling him that siding with Westboro Baptist would allow bans against anti-abortion protesters. O’Reilly’s only response–as it usually is–“I don’t buy it!” That’s no argument and it has nothing to do with compassion–it’s a desire to shut up the people you don’t agree with or don’t approve of. Not the same animal at all!

  32. “Somehow, I imagine that people who have been victims of physical violence would have MORE sympathy for those who are verbally bullied and, yes, brutalized, than the general population would. I think it’s bizarre that you would think a victim of physical violence would privilege their own assault over someone else’s, and also that you think such a response would be universal. Hate is hate.”

    No, not brutalized. Physical assault IS assault. Verbal assault is a freaking METAPHOR. You want to haul Phelps before a metaphorical court, and levy metaphorical penalties? Fine.

    You want to haul him before a real court, that can order guys in blue uniforms to mete out real physical penalties, because he said something you didn’t like? Not fine.

    The intellectual gymnastics some people will go to, to find an excuse to shut people up who are saying things they don’t like, never ceases to astound me. But that’s a road we must not start down.

  33. I second (or third) the comments invoking ‘Citizens United’. Alito went all First Amendment absolutist to protect non-persons when it suited him. In this case, he’s clearly lying.

  34. Henry writes, “If we allow Snyder to sue under those circumstances, then wouldn’t we have to allow him to sue if Phelps published an op-ed expressing his venom?”

    Actually, Henry, it wouldn’t bother me at all for Snyder to have a cause of action in those circumstances. If Phelps were to publish a column that singled out an individual by name, and claim that God killed that particular boy because God hates homosexuals, the family should have a right to sue.

    I know that’s not how our First Amendment jurisprudence has developed, but I don’t like our First Amendment jurisprudence. I think it’s a problem that people like Karl Rove can orchestrate the spread of crude and damaging lies about targeted individuals, and they have no recourse, or that people like O’Keefe can slander and destroy the lives of perfectly ordinary people and there’s no penalty. How would it damage our public discourse if John Kerry could have sued the Swiftboaters and gotten a judgment that he had indeed suffered wounds entitling him to his Purple Heart medals, and awarding money damages and costs? Wouldn’t some minor degree of judicial recourse for intentional lies told by powerful people actually improve our discourse, just as recourse in the case of false advertising by big corporations improves the commercial sphere? But the constitutionalizing of the laws of libel and other speech torts has made them either invalid or ferociously expensive and all but impossible to prove. I’m in favor of no prior restraint, but I’m against much of the limitations placed on state tort law in the name of the First Amendment.

  35. Keith…

    Conservatives and compassionate justices…
    Thanks for the play on memes.

    By the way, if a pun is a play on words…
    What should we call a “play on memes”?

  36. It seems to me that the issue isn’t really Phelps’ right to speech, he can say whatever he wishes. The issue is whether a private citizen, Snyder, has a right not to become the central participant in Phelps’ publicity stunt.

    If Phelps’ use of Snyder is protected, then there are no privacy rights.

  37. Yeah, venice. And I’m glad Bloix brought up good old-fashioned state torts, ’cause I’ve been thinking about that, too.

    Whatever happened to IIED? Does federal First Amendment jurisprudence override state tort claims? Of course (right?) the Supreme Court wouldn’t reopen the state court’s determination on a tort claim, even if it were (as I presume it was not, here) in favor of the plaintiff.

    Also — rule on the basis of “compassion” — really, Alito? It wasn’t that long ago that Republicans were slamming Sotomayor for saying that empathy was an important characteristic of a judicial temperament.

  38. Phelps and his people are assholes who should be shouted down when they show up at these things, and then tracked into their private lives for the same sort of treatment they mete out, until they cease , or act out in some prosecuatble manner.

    But all the back and forth here seems to miss the real point, the one that the Snyders and other in their shoes will never let themselves recognize. The real brutalizing here was done by the architects of the Iraq war, the people who wasted their son’s life on a fraud and boodoggle. Phelps didn’t get the boy killed, and compared to that what he did do is inconsequential. Sane people shoudl reserve their hatred for the people who actually pissed these lives away.

  39. Betsy writes, “Whatever happened to IIED? Does federal First Amendment jurisprudence override state tort claims? Of course (right?) the Supreme Court wouldn’t reopen the state court’s determination on a tort claim, even if it were (as I presume it was not, here) in favor of the plaintiff.”

    Yes, of course the First Amendment overrides state tort claims; see Hustler Magazine v. Falwell. In Phelps v. Snyder, the plaintiff won in federal district court, the court of appeals reversed, and the Supreme Court affirmed the court of appeals. There was no state court determination, but, if there had been, then the Supreme Court could take the case on appeal if a federal statutory or constitutional question were raised.

  40. I cited Hustler Magazine v. Falwell because the state tort claim in that case was for intentional infliction of emotional harm, which is what I assume “IIED” means. The primary case on state tort claims generally is New York Times v. Sullivan, which held that defamation claims are limited by the First Amendment.

  41. Forgive me for asking — I pray you, believe I’m neither stupid nor unschooled, but I did just work another 60-hour week on a completely different subject than First Amendment Law — what aspect of a state IIED tort claim wouldn’t First Amendment law do away with entirely? and yet, there is such a thing recognized in state courts.

    IIED = intentional infliction of emotional distress. I always liked the poetic meter of that phrase. Five points to anyone who can scan that line and name the feet.

  42. “what aspect of a state IIED tort claim wouldn’t First Amendment law do away with entirely?”

    I am not going to do the research, but no doubt purely private injury is actionable. For example, if I told you that a loved one of yours had died, knowing that he or she had not, and solely to cause you distress, there would be no First Amendment protection.

  43. Betsy: it’s a meter of iambic tetrameter coupled with one of iambic trimeter. (Slow Friday.)

  44. kalkaino: “The real brutalizing here was done by the architects of the Iraq war, the people who wasted their son’s life on a fraud and boodoggle.”

    I’m betting Fred Phelps agrees with you.

  45. I think it’s three instances of “secundus paeon” followed by a trochee, but the previous disclaimer about my current mental capacity still applies. Regardless, you get Slow Friday’s prize if only for your mellifluous moniker.

  46. Phelps did not defame Snyder. Snyder and Snyder’s son were, in fact, irrelevant to Phelps’ protest.

    Snyder’s funeral was targeted for only one reason: Phelps knew that showing up would get him attention. This was acknowledged in oral arguments.

    Today if someone decides that showing up at your kids’ birthday party or wedding or whatever and acting out will get them publicity, they’re free to do it. And you, private citizen though you may be, have no recourse because you can’t violate their Constitutional right of free speech.

    This decision was a victory for those who assert there is no right of privacy, and we all know where those arguments lead.

  47. venice, you mean if someone shows up 1,000 feet from your kid’s birthday party or wedding, and you learn what he said later, from watching television. That’s more than three football fields, and almost four city blocks (counting four blocks as a fifth of a mile).

  48. Phelps also rejoiced at the 2004 tsunami that killed a quarter of a million people in Indonesia, Thailand, and elsewhere. This was God’s punishment for Thailand’s having tolerated prostitution and other practices.

    So we can issue an ironclad, money-back guarantee that they will waste no time in proclaiming that divine judgment has fallen upon Japan and the West Coast (notwithstanding that San Francisco was barely scathed).

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