Legal Commentary

This morning, the Supreme Court hears oral argument in Snyder v. Phelps, a case I (and others, including Lyrissa) have written about repeatedly. At issue is the validity of a multi-million-dollar civil judgment for invasion of privacy against Westboro Baptist Church for its protest near the funeral of a soldier killed in Iraq. The jury awarded the father nearly $ 11 million, reduced to $ 6 million by the district court; the Fourth Circuit reversed, holding that the judgment was inconsistent with the First Amendment because the statements could not be understood as stating verifiable facts and thus could not form the basis for civil liability. Dan Solove explained last March why Snyder's claims are weak as a matter of tort law and as a matter of the First Amendment and I concur in his arguments. Cardozo Law Review De Novo recently published an extensive on-line symposium on the case. And Jason Mazzone offers his thoughts today.

I am anxious to see (and, starting this term, hear, at least by the end of the week) how the oral argument goes. The prevailing view is that Phelps/Westboro will win. But my recurring concern in this case always has been why SCOTUS granted cert. If, as I and other First Amendment scholars believe, the Fourth Circuit got it right as a matter of necessary free-speech principles and protection for even offensive speech, there seems no reason for the Court to take the case. There is no circuit split because this is the only major civil judgment against Westboro. The recent efforts in many states to regulate picketing at or near funerals (which is percolating in the lower federal courts) is not really in play here. Indeed, as Mazzone points out, Westboro complied with all the limits on their speech (they were 1000 feet away, did not disturb the funeral or attendees, and, in fact, Snyder only learned of Westboro's speech on the news and by going onto their website). Really, this case seems less about funeral protests and more about offensive speech generally.

Bu the Court typically does not grant cert simply to affirm lower courts, even on important constitutional liberty issues. Nor does the Court typically grant cert to affirm on narrower sub-constitutional grounds rather than constitutional grounds, where those sub-constitutional grounds are products of state law (there is apparently a good argument that Snyder failed to prove his case as a matter of state tort law--but SCOTUS typically does not concern itself with that). So what else is going on here? Perhaps we will see this morning.