Popular speech doesn't raise First Amendment issues. Where constitutional protections become relevant is when speech is highly unpopular, and in these cases, the Supreme Court historically has had a very uneven track record. In the modern era -- after the Supreme Court unanimously found that even KKK rallies constituted protected speech -- there was allegedly a consensus, or near consensus, on a libertarian approach to speech. According to Dahlia Lithwick and some other observers, however, this near consensus may break down in a case involving the loathsome Fred Phelps and his church's odious protests at a military funeral.
This case, which the Supreme Court heard yesterday, involves a multimillion-dollar judgment against Phelps in a suit brought by the parents of a soldier whose funeral was protested. The decision was overturned by the Fourth Circuit [pdf] as a violation of the First Amendment. Adam Liptak's summary gets to the heart of the issue:
Justice Ruth Bader Ginsburg noted that state and local governments had enacted laws creating content-neutral buffer zones around funerals. She suggested that those sorts of laws were a better response to protests than allowing private-injury suits.
Justice Samuel A. Alito said the existence of a buffer zone imposed by law did not necessarily pre-empt other remedies.
I think that Ginsburg is correct here. Private injury suits -- as this case demonstrates -- are almost certain to produce results contrary to the content neutrality that the First Amendment requires. It is extremely unlikely that an award would be given to, say, anti-war parents who were distressed by pro-war protests at the military funeral of their daughter. It's reasonable for the state to require buffer zones around funerals that apply to everyone, but when people become liable for even extremely hateful political speech, the First Amendment is being violated. The strong possibility that the Supreme Court will not uphold this crucial principle is unfortunate, no matter how undeserving the beneficiary.
--Scott Lemieux
