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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Tuesday, March 08, 2011

And another "What can you say?" - Snyder v. Phelps

I haven't yet read the judgment of the US Supreme Court in this case, so I can only go on various reports, including a quite thorough Wikipedia article (which will, I don't doubt, grow in detail).

This is another case of religious fanatics demonstrating ... with legal repercussions. But on this occasion they ultimately prevailed by 8-1 (Alito J. dissenting) at the level of the highest court. It was found that their speech was constitutionally protected by America's First Amendment. The case involves, of course, the notorious Phelps family and its habit of picketing funerals for US servicemen in order to make their loony (oh noes, the snark-hunters will be after me again!) point that America is doomed because of its tolerance of homosexuality.

Loony or not, it's a point that the Phelps clan are lawfully entitled to make. Should they have been entitled to make it in the way they did? Without having all the detail - so I could change my mind, I suppose - my answer is "Yes." Yes, based on the facts as given in the Wikipedia article. In particular, they abided by lawful instructions from the police and did not conduct their protests (or whatever) in a way that disrupted the funeral concerned. Indeed, they were at sufficient distance that mourners were not necessarily even aware of them.

On these facts, I don't see how there was even a case to be argued. The matter should never have gone as far as it did. That's not to say I'm sympathetic to the Phelps clan - on the contrary, I have nothing but contempt for them, and I have nothing but sympathy for the mourners. But unless I'm missing something important, this is a clear-cut case where the litigation should have been thrown out from the beginning. Litigation is not the answer to every evil, and the US Supreme Court has done the right thing in reinforcing that message.


Elephant said...

Yes quite. I never saw why it was necessary to argue this as a First Amendment case. It is a due process case. The Phelps followed the law - in their odious way - and a Maryland jury simply made up new rules retrospectively.

March Hare said...

And yet the Supreme Court were not unanimous.

Makes you wonder what the heck goes through Alito's mind on some of these cases.

Eamon Knight said...

Makes you wonder what the heck goes through Alito's mind on some of these cases.

As I said elsewhere: I think it came down to a "Support the troops!" reflex. If Phelps only hit the funerals of, say, AIDS victims, he might have ruled the other way.

Marshall said...

I totally agree with your take on these last few, Russell.

There was also this from Orange County, Ca ... check the pix... that got noted in the Guardian. Whatever these guys do on Sunday they are identifying as Nationalist Secularists: "Americans".

And here's Spencer Ackerman on Old-Fashioned Dignity Promotion, one of the saner things I've read recently.

An interesting point. Jury nullification is one of the important protections of the American legal system; the jury not only establishes empirical "matters of fact", it also passes judgement on the morality of the case. Prosecutors don't like it and it isn't in the rules, but it's in the system. Good or Bad? It would be one force preventing The Written Law from straying too far from the values of the community, also could show a bit of mercy in a hard world. Better system than "the judge decides" if you ask me.

In this case the nullification was properly overruled, on the grounds that simple non-targeted remedies were available (a blanket no-demonstrations zone around funerals).

Sarge said...

I am a veteran, and have sons in the military, and knowmany others who also "serve".

I agree with the fact that as nasty and crappy as the Phelps gang is, well, I fought for their rights, too. Don't have to like them or what they say, but there it is.

Many of my fellow vets are outraged at this and if you disagree you hear, "Well, ya can't yell fire in a theater..." accompanied by a beetle browed, out thrust lower lip, head nodding frown.

On the other hand, since money is regarded as "speech" and a few other non verbal things, I wonder.

Maybe a rebuttal to the Phelps point of view by the families of the bereaved might be protected if it took the form of a punch in the mouth, knee to the groin, or elbow to the kidney.

The possibilities...

Whatever that's supposed to mean.