Snyder v. Phelps

Yesterday the Supreme Court announced the decision of Snyder v. Phelps (full opinion here if you want to read it), upholding the right of the nasty folks at the Westboro Baptist Church to picket funerals of fallen soldiers. The court said that the peaceful picketers in a place where they could lawfully be expressing themselves (however disgustingly) on matters of public concern, could not be held liable to the soldier's family for intentional infliction of emotional distress. The court said,

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.

I agree with the court's decision. It was a hard one, because the actions of the Phelps people was so repugnant. However, if the court had affirmed the jury verdict, it would have paved the way for liability based upon whatever the left's hate-speech du jour was at any given time.

Better that we have speech protection for all, unlike European countries that claim to have free speech as long as you don't insult anybody.