Legal Commentary

I continue to endorse everything Neil said , which is spot-on. Let me add a few additional thoughts of my own.

First, this case is going to be considered of a piece with last term's decision in United States v. Stevens (striking down a ban on video depictions of animal cruelty). Both were 8-1 decisions authored by Chief Justice Roberts with Justice Alito alone in dissent. In both, the Chief wrote fairly broad opinions applying a basic libertarian understanding of the First Amendment to protect highly offensive,  generally disgusting speech, in the face of public perception that the speech ought to be proscribed. In both, the Chief was unwilling to recognize new categories of unprotected speech or to expand existing unprotected categories. And in both Justice Alito showed a greater willingness to find morally objectionable or offensive expression to be unprotected, even if it did not precisely fit within previously recognized limits on speech. This is an interesting fault line.

Second, the analytical focus was on the nature of the speech (whether it was of public or private concern) rather than the nature of the plaintiff (Snyder and his late son both were private persons), as it is in defamation cases. This is a significant shift, to the extent it applies to "speech torts" generally. In the early years after New York Times, several justices (lead by Justice Brennan) pushed toward having the actual malice standard depend on speech being on matters of public concern, an effort that ended in Gertz v. Robert Welch. The public-concern of the speech was part of the analysis for assigning burdens of proof, but the key element of actual malice depends on the identity and nature of the plaintiff. The Court followed that approach in Hustler, emphasizing that Falwell was a public figure (although that essentially made the parody there a matter of public concern).

Not here--constitutional protection turned entirely on the nature of the speech and it being directed at broader socio-political issues, which entitled it to "special" protection from tort liability. There was no discussion of the nature of Mr. Snyder or Matthew (both of whom plainly are/were private persons).

This split the majority and Justice Alito along several axes. First, whether the protest occurring at Snyder's funderal--particularly recognizing that the point of targeting the funeral was to draw maximum public attention to the protest--rendered the speech private; the majority said no, Alito said yes. Second, that certain signs ("You're going to hell" or "God hates you") seemed to have been related to Snyder specifically did not matter to the majority, because the "overall thrust and dominant theme of Westboro's demonstrations spoke to broader public issues." The majority's view was significant, because it justified not remanding and giving the jury a chance to consider the nature of any of the speech. Third, the Court did not explain why the proper question should be "overall thrust" of the speech rather than statement-by-statement.

Third, the role (or non-role) in the case of the so-called "epic," Westboro's internet rant about Matthew Snyder that Mr. Snyder saw sometime after the funeral, is interesting. The majority ignores it, explaining in a footnote that Snyder did not refer to it in his cert petition or briefing, which focused only on the speech that occurred at the funeral. Which makes sense, because focusing on the on-line speech would have undermined his privacy claims, which were location-based. On the other hand, Alito treated the epic as evidence that Westboro's speech was, at least in part, directed at Snyder, and that the jury could have used to conclude that the speech was private rather than public.

Fourth, the majority made no mention of Milkovich v. Lorain Journal, the case on which the Fourth Circuit largely relied for the proposition that the speech could not be the basis for liability since it could not be understood as making any demonstrable statements of fact. On one hand, this makes sense, since Milkovich was a defamation claim rather than a privacy claim. On the other hand, there is something appealing about a principle that tort liability cannot attach to hyperbole or exaggeration, a path the majority chose not to follow.

Fifth, the Court did not provide any guidance (beyond broad definitions) of when speech is on a matter of only private concern. But the tenor of the opinion suggests this will be a fairly narrow category. And "mixed" public and private likely will be treated as public, in the interest of providing "breathing space" to the First Amendment.

Finally, Roberts made the typical move of including nice rhetoric recognizing the pain caused by the speech, but looking to the Constitution itself as demanding a different balance:

Speech is powerful. It can stire people to action, move them to tears of both joy and sorrow, and--as it did here--inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not sifle public debate.

Downright Brandeisian or Brennanesque.