By Edward Zelinsky
It is noteworthy when eight ideologically diverse justices of the U.S. Supreme Court all decide a First Amendment case the same way. Thus, Snyder v. Phelps is a noteworthy decision. The Westboro Baptist Church is well-known for its demonstrations at military funerals. Indeed, the Westboro Church, led by (and, some say, principally consisting of) the Phelps family, has the rare distinction of having been denounced by both Jon Stewart and Mike Huckabee.
Members of the Westboro Church demonstrated near the Maryland funeral of Marine Lance Corporal Matthew Snyder, killed in action in Iraq. Mr. Albert Snyder, the corporal’s father, sued the Westboro Church and its members for various torts including intentional infliction of emotional distress. Mr. Snyder prevailed in a jury trial. In invalidating the jury’s verdict, the U.S. Supreme Court, except for Justice Alito, said that the Church and its members were exercising their free speech rights in a constitutionally-protected fashion.
As the Court described the facts of the case, it is hard to disagree with this conclusion. According to those facts, the Westboro Church and its members told the local authorities of their intention to demonstrate at the time of the Snyder funeral and “complied with police instructions in staging their demonstration.” The Westboro demonstrators stayed “behind a temporary fence…approximately 1,000 feet from the church where the funeral was held.” The demonstrators went neither to the church where the funeral was held nor to the cemetery, and were nonviolent throughout their demonstration.
On these facts, the message conveyed by the Westboro Church is obnoxious (“God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers”) but constitutionally protected.
The problem is: Those were not all the facts of the case. Only Justice Alito confronted this reality. After the funeral, a member of the Westboro Church posted on the Church’s website a hate-filled message aimed specifically at the Snyder family. Among its other assertions, this website message accused Mr. and Mrs. Snyder of having “raised [Matthew] for the devil.” The Snyders, the web message continued, “taught Matthew to defy his Creator, to divorce, and to commit adultery.” Then the Snyders sent their son “to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life.”
Media accounts of the Court’s decision have largely ignored this web-based attack on the Snyders. Media accounts have also largely ignored the eight Justices’ acknowledgment that, if this web-based attack is considered, Westboro and its members may indeed have stepped over the line, forfeiting First Amendment protection by this vicious internet attack on the Snyder family. As Chief Justice Roberts put it in a footnote to his majority opinion, this “Internet posting may raise distinct issues in this context,” issues which the Court declined to consider because of the failure of the Snyders to press this point in their petition to the high court.
Justice Alito disagreed with his colleagues in his willingness to confront the facts of the case as they were presented to the jury: Westboro and