A Few Preliminary Thoughts on Snyder v. Phelps

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6 Responses

  1. Tim Zick says:


    These are all interesting observations, which I think capture the most important aspects of the decision. I remain generally concerned about spatial tactics like free speech zones, although apparently the Phelps protest would have been within the bounds of Maryland’s funeral protest law (which was enacted after the events in question). I think legislatures will be taking another look at those laws in light of the decision. I was actually somewhat heartened by the fact that the majority acknowledged that the speech in question targeted the funeral in an effort to generate publicity, and that this fact did not render the speech more reprehensible (as Justice Alito suggests) or convert in into speech on matters of private concern. Contesting public places by targeting certain locations is a powerful aspect of some public speech (witness the events in the Wisconsin capital). Whatever one thinks of the WBC, this decision is a significant victory for public expression in public forums.


  2. Lawrence Cunningham says:

    Neil–Thanks for this lucid, hot-off-the-press account of this profoundly important bundle of issues. –LC

  3. Joe says:

    Interesting remarks and I too share the sentiment that the opinion (as it said itself) was somewhat narrow in scope. Having read Mr. Zick’s interesting book, the “free speech zone” aspect did come out too. And, what would be “private” speech here? After all, a case can be made that the event or figure here is somewhat “public,” particularly given how the family made it so by promotion. Lots of potential lower court line drawing left.

  4. The Missing Piece says:

    This is fine preliminary analysis, but along with the other analysis I’ve seen, appears to miss some key points. That’s not surprising, since even Justice Alito in dissent missed a couple of arguments that could have made his dissent much more persuasive. As my arguments come from a piece written by someone else on the eve of arguments, I’ll just point you in that direction and note that they ought not be impacted by the spatial issues, timeliness of the emotional distress, etc., which were all properly left for the jury’s determination and ought not be disturbed on appeal. That is, the jury’s factual findings that harassment at a distance, and delayed reception of that harassment, still gave rise to emotional distress is not utterly unreasonable, and should therefore have little to no role to play in the analysis.

    Here’s the link:


    And here’s the gist (from the post):

    This set of facts is unique to the hate speech and libel cases, where the Phelpses dragooned Mr. Snyder and his dead son into service as involuntary instrumentalities of their message. The Phelpses may have a right to their message, but there is no right to utilize funerals or their mourners as message amplifiers. Consider that under standard First Amendment doctrine the Phelpses could be held liable for trespass for standing on Mr. Snyder’s lawn while engaging in speech, or for harassment for telephoning Mr. Snyder and providing an unwanted message. If there are good reasons to respect those proscriptions (and the Supreme Court has found them), there is even better reason to engage in reasonable regulation of the same type of invasion done on a grander scale. Private harassment is not immunized by making it public. Thus it would make no sense to eradicate established protections merely because, in a high-profile funeral setting, the message reaches a broader audience. It only does so because the speaker has exploited both a setting due a measure of privacy and an audience captured by circumstance.

    Indeed the main reason the message is amplified is the commission of the tort itself; that is, because of the injury to the Snyders. Without the infliction of distress upon their target, the Phelpses would be just another band of wandering weirdos. Viewed this way there is little distinction between proscribing a reasonable buffer between protesters and mourners, and punishing a classic “soapbox” speaker who lights an audience member on fire and declares “repent!”, or even one who steals a printing press to distribute a speech on civil rights, all to reach a wider audience. Values like autonomy and dignity, which tort law seeks to preserve and advance, are raised frequently as ones the First Amendment also protects. With similar interests at issue here, it would be inappropriate to run rough-shod over one side while granting full favor to the other.

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  5. Joe says:

    The last comment seems to be a dubious way to combine private and public. Honestly, it’s pretty confused.

    Front lawns are combined with protests in public places. There is no tort for “involuntary instrumentalities of their message” or Michael Vick can sue for being one for animal activists. A bigoted storeowner will have “distress” when s/he is targeted by a protest too. Do they have a cause for relief too?

  6. The Missing Piece says:

    Joe–your comment suggests you either didn’t read the post or you didn’t understand it, as each point you raise is either wrong or irrelevant. Try it again with an open mind.

    Bear in mind as well that the easiest thing to do among members of the con law cognoscenti (of which I am a sometimes proud member) is to pose as a first amendment absolutist who would “fight to the death to defend” speech he doesn’t like. The fight to death thing is an utter lie — no one would fight to the death to defend the Phelpses. And no one is a first amendment absolutist either. The government regulates — as a matter of course — large swaths of disfavored speech. While there are all sorts of doctrines, they can be boiled down to one — the government may regulate speech whose value is outweighed by its costs. That certainly seems to be the case with the Phelps speech, and the post provides a very elegant and (as far as I know) original way of getting there through EXISTING first amendment doctrine.