Earlier today, the Supreme Court handed down its decision in Snyder v. Phelps. This is the case where the congregation of Westboro Baptist Church picketed the funeral of marine lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq. The signs had choice words for gays and also for the military. For example, some of the signs stated, "Thank God for Dead Soldiers," Fags Doom Nations, and "You're Going to Hell." Snyder's father filed suit for intentional infliction of emotional distress and won a multi-million dollar verdict. The Church did not dispute the sufficiency of the evidence, nor did it dispute that its speech was outrageous and atrocious. Instead, it defended its speech on First Amendment grounds. Siding with the Church, the Court held that the Church's speech was in fact protected under the First Amendment. Only Justice Alito dissented from the Court's holding.
To be sure, it is refreshing to see a super-majority, especially from the Roberts Court, sticking up for unpopular minorities other than corporations. It is also comforting to see eight justices agree on a case as public and as noted as this one. Polarization does have its limits.
On the other hand, it is clear that Justice Black's absolutist view of the First Amendment lost out long ago. The Court makes all kinds of distinctions between protected and unprotected speech. If this is the kind of speech that the First Amendment is designed to protect, then I cannot help but think that there might be something wrong with the First Amendment.
I need to ask the experts: one cannot shout "fire" in a crowded theater or burn a cross in front of an African American family's house, but one can go to a stranger's funeral with placards that read "God Hates Fags" and "Thank God for Dead Soldiers" and inflict emotional distress?
Can we really differentiate Virginia v. Black -- the recent cross burning case -- from this case all that easily?