I would argue that freedom of speech is something that we don't exercise very often as individuals. As a nation we continually speak out for a myriad of causes, but the average American has their hands full dealing with their own lives, spending their energy outside of the public arena.
Yet, the story of freedom of speech is everywhere. We as a society hold it paramount amongst the tenants of the Western World that we not so secretly hold as the correct way. It is one of the flags we wave the most furiously as we confront dictators in both the real world an pop culture. We only need simply look at popular cinema to find the narrative of freedom of speech and democracy fully alive. From political thrillers to fantasy and adventure the theme constantly reappears, but perhaps most frequently in Science Fiction. Science fiction often plays to a Utopian/Dystopian dichotomy in which the seemingly ideal world is controlled in a heavy handed, totalitarian matter keeps citizens in check by limiting free speech and other acts of self expression.
The point is that despite the average individuals non usage, freedom of speech is very important to Americans not only in practice and law, but in cultural identity as well. This drawn out exposition on the meaning of free speech leads me to how important this last case involving funeral protests really is.
To start, the actual case, Snyder v. Westboro Baptist Church, is not the most important aspect of the ruling. That is to say that the Snyder family not being awarded money from Westboro Baptist Church is not the main concern.
The main concern lies with the issue of precedent. When the Supreme court, or any court for that matter makes a decision, it not only consults the actual letter of the law, but rulings on similar cases that have come before, which can be quite difficult to overturn. The ramifications of this ruling will be large, as lower courts will turn to this case for precedent, but perhaps very long, as the issue cannot be revisited until the Supreme Court rules on another case regarding freedom of speech. This will most likely be later than sooner, as the number of cases the court can take each year is limited, the courts choose what cases they will hear, and the right case has to come along.
Now to the ruling itself. Some may not know that with every ruling that the Supreme Court makes, there are opinions that go with it. The Majority Opinion is authored by one judge on majority side that speaks for the other Justices who ruled in the same manner. If there is a dissenting Justice or Justices, which often there are, one Justice from that group will author the Minority Opinion. On rare occasion there can be concurrent opinions in which a Judge will have the same ruling as either the majority or minority, but has made the ruling for a different reason than stated in the other opinion.
In this particular case, the Majority, which ruled that the Westboro Baptist Church protest at the Snyder family funeral was protected by the First Amendment under Freedom of Speech, got it mostly right. To start putting barriers and making exceptions to the First Amendment is perhaps the most slippery and dangerous Constitutional slope.
The issue at hand for this particular cases is not inciting of violence or bodily harm, as past cases have dealt with. The most famous of these is Schenck v. United States in 1919. Schenck was distributing fliers protesting the military draft during WWI. The popular metaphor that came from this case was "falsely shouting fire in a crowded building" as this speech serves no purpose but to cause injury (from the impending panic/stampede of the crowd to escape). The other notable quote from this case was that Schenck's actions were creating a "clear and present danger" by hampering the governments ability to recruit soldiers. Later the case was overturned and the limiting of the First Amendment was limited to speech that imminently caused violence or bodily harm, such as a riot.
The issue in this case is the public sphere versus the private sphere. If anyone was so inclined, they could walk the streets spewing racial epitaphs. However, if one was in a private institution, such as a school or workplace, that language could be prohibited and the person expelled from the premises and institution. It is the same idea of a dress code at a school or a restaurant being able to refuse service and entry to those not properly dressed.
The question then becomes, was the protest and picketing by the members of the Westboro Baptist Church confined to the public sphere? The Majority in this case ruled yes. The argument that America is immoral and that God hates homosexuals are a matter of public debate, no matter how ugly some of us might find that language to be. To this point, I agree with the majority.
I find what Justice Altio did in his dissenting opinion was quite interesting. I can see that the majority focused on the general, the ability for one of picked and protest being a public matter, in order to rule in a way that protected the First Amendment. What Alito did was narrow his scope to examine, I argue more in depth that the other Justices, this specific case and the rhetoric that came from the picketers. Alito found that some of the messages that were coming from the the protesters were matters of the private sphere, and not limited to public debate. He specifically notes signs that attacked the Synder family by name, as well as how they raised their son.
The reason I am in favor of Alito's opinion is two fold. As someone who finds it offensive to protest at a funeral (Alito also makes not that if this was strictly a public debate the protest could have taken place anywhere, such as courthouse steps, but instead was at held during a private ceremony), I think that the court could have had it's cake and eaten it to. By Ruling in favor of the Snyder family for the reason that the messaging entered the private sphere would have allowed the Snyder family victory and compensation, but would have set forth a precedent in which public debate was still protected. The can of worms opened would be the distinction between public and private speech, but I wouldn't be surprised if that would be mitigated by organizes if protests instructing their followers to refrain from ad hominem attacks and to keep it strictly to public debates (such as God hates some general group).
The second reason I find myself interested in Alito's ruling is that he focused on solely the case in front of him, as he is supposed to do, keeping his scope narrow. His decision to treat the rhetoric coming from the picketers not as a whole, but being individual and different is something I like when I feel that often we are as society are quick to group people together.
I have no doubt that Alito went to the level of detail and distinction, as well as choosing his specific scope, in order to make the ruling he wanted to, but I suppose I most appreciate his "creativity" in being able to come to the ruling I wanted while still making a sound argument.
Alito appears to be taking a stand that the First Amendment is not license to say any hateful thing that one wants. It will be interesting to see if Alito also has other limitations to the First Amendment that Liberals may not be as thrilled with as this opinion.
Alito is a George W. Bush appointee and thought to be the most conservative Justice currently serving.
