In his blistering dissent, Alito rejected that reasoning:
"I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently."
Phelps had issued a press release before the funeral, so the Snyders knew this hideous protest was occurring while they were in the midst of grieving. Alito cited it as typical of Phelps’ strategy to milk these events for publicity.
"Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson – proclaiming that she was 'better off dead' – their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest. Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman."
Alito cited an on-line account posted by Westboro after the protest that crudely assailed Matthew Snyder personally, both of his parents and the Catholic Church. The problem, Roberts wrote in a footnote, was that the plaintiff’s case was based on the protest, which had complied with the law.
The whole thing is awful. One cannot even imagine what the Snyders are still enduring. Everyone with a shred of decency should be outraged, just as in 1977, when the American Nazi Party won the right to parade through Skokie, Illinois, where many Holocaust survivors live (the Nazis ended up marching elsewhere).
But here’s the silver lining. The Court’s ruling may prove to be a powerhouse defense against growing attempts to throttle freedom of speech on the airwaves and on the Internet. And it may defuse the bomb of the federal hate crimes law as well as the local and state versions that have been springing up like mushrooms. If what Phelps did to the Snyder family is not actionable, it’s doubtful that courts will succumb to the temptation to levy penalties for “hate speech” in general.
Breyer's concurring opinion noted that in Harris v. Jones (1977), the Court of Appeals of Maryland found that, "the state tort of 'intentional infliction of emotional distress' forbids only conduct that produces distress 'so severe that no reasonable man could be expected to endure it,' and which itself is 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'"
Millions of Americans, especially those who have lost loved ones in the service of their country, must wonder in light of this ruling what could possibly meet that test.
While the decision is important in the long term for freedom of speech, Justice Alito’s dissent is a reminder that sometimes, upholding the law seems to defy common sense and decency and that someone has to speak for the injured party. A 9-0 decision might have sent the message that people like the Snyders are merely collateral damage. This is one of those times in which a spoonful of bile helps the medicine go down. But what’s the Snyder family to do, or the families of all those other slain servicemen and women whose funerals have been ruined by Phelps’ bizarre and hateful antics? Can’t something be done?
For starters, the Maryland legislature and other lawmakers should increase the distance from which funerals can be protested from the current 100 feet to, say, 5,000 feet. The Snyder family funeral procession came within 200 to 300 feet of the Phelps bunch, and Mr. Snyder said he saw the tops of the signs.
American patriots can continue to show support for our military and their families in the face of these hideous intrusions, and pray that God changes even the coldest of hearts.
As for the Phelpses, it's likely that they would eventually fade away if the media would stop giving them the coverage they crave. Who was that Florida pastor, again, who had threatened to burn the Koran?
Jesus never condoned homosexuality or other sexual sins, despite the fantasies of biblical revisionists. In fact, He reminded us of God's standard for sex in Genesis 2:24 that a man and his wife "will become one flesh," and He upped the ante, saying that if a man cultivates lustful thoughts, he is guilty of adultery. But it’s not remotely plausible that Jesus would be out there with the Westboro mob, making an anguished family even more miserable.
The Court has gotten this right for the greater good of free speech, but I would bet that America's heart is with Sam Alito – and the Snyder family.