Snyder v. Phelps: The Constitution Protects ‘Outrageous’ Speech Too

Posted by Ilya Shapiro

I’ve resisted commenting on Snyder v. Phelps, the “funeral protest case,” because, as the old saying goes, hard cases make bad law.  And in this instance, really weird and repugnant speech makes for a lot of sound and fury signifying very little.

Still, the bizarre and inflammatory facts of the case — protestors show up at soldiers’ funerals to make the point that these deaths are God’s retribution for America’s tolerance of homosexuality — have gained plenty of media interest, particularly during this relatively uneventful term at the Supreme Court.  So I have commented a few times on the radio and yesterday attended the oral argument, the transcript of which you can read here and audio for which should be released on the Court’s website tomorrow.

At the end of the day, this case implicates all sorts of legal issues but the First Amendment is almost tangential to it.  A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests are neither loud nor involve “getting up in the grill” of people, as their lawyer (and church member) put it during oral argument.  In short, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries—but they shouldn’t be able to sue simply for being offended.  Eugene Volokh has a more detailed analysis in the Wall Street Journal.

Oh, and as for predicting how the Court will rule, I’ll say 8-1 for the Phelpses in a narrow opinion, with Justice Alito dissenting (as he did last year in United States v. Stevens, the “depictions of animal cruelty” case).

Hate Register?

Posted by Jason Kuznicki

In my policy analysis “Attack of the Utility Monsters,” I wrote that one problem with hate speech laws is that the longer they stay on the books, the more they can encourage outrage over increasingly petty offenses. Here’s a story from the United Kingdom I’d certainly have included if I were writing that paper today:

A ten-year-old boy from Weston Super Mare has been put on a school “hate register” after he allegedly made a homophobic insult in the playground.

Peter Drury, a pupil of Ashcombe Primary School, is believed to have called one of his friends a “gay boy,” according to his mother.

The boy’s mum says she was called into her son’s school to be told by head teacher that another mother had heard him using homophobic language.

She claims she was told the incident would be registered and his file monitored while he was at the school.

“He doesn’t even understand about the birds and the bees, so how can he be homophobic?”

Schools are reportedly being given advice that offensive comments made by children as young as five should be recorded and kept on record until the pupil leaves secondary school.

Kids can be incredibly cruel, in both word and deed. But if we were to put every child who ever said something hurtful on a “hate register,” just how many kids would we have to register? All of them? What good would that do us?

Obama, International Law, and Free Speech

Posted by Tim Lynch

Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech.  This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:

“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh — then a professor at Yale Law School — “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

Read the whole thing.