There have obviously been a lot of public protest activities of note recently (Egypt and other global hot spots, the protests in Madison, Wisconsin). Today the Supreme Court handed down its decision in Snyder v. Phelps, the case involving the funeral protests by the Westboro Baptist Church. The case garnered lots of media attention, in part owing to the sympethetic plaintiffs and the incendiary speech of the Phelps family, who comprise the Westboro Baptist Church. The Court held, 8-1, that the civil verdict against the WBC for intentional infliction of emotional distress and "intrustion upon seclusion" could not stand. The majority concluded that the WBC's speech was on "a matter of public concern" and thus entitled to full First Amendment protection. It was also significant that WBC's members were speaking on a public sidewalk, or "public forum," where they had a right to be. Justice Alito argued in dissent that since Mr. Phelps, the father of the fallen Marine, was a private figure, full protection ought not to apply to the WBC's speech. He likened their expression to a verbal assault that inflicted psychological injury, and disagreed with the majority that civil liability could not attach to such expression.
The decision is a strong re-affirmation of some very basic First Amendment principles. Public speech in a public forum on matters of public concern is granted special protection under the First Amendment. Moreover, the hatefulness or offensiveness of spech is not a proper ground for regulating or suppressing it. Under the intentional infliction theory pursued in the case, "outrageousness" is the core standard for determining whether a statement is tortious. The Court rightly rejected that as a standard for jury application, on the ground that it invites subjective judgments regarding the content of expression. In traditional public forums, as well as newer cyber-forums, speech is often heated, hateful, and offensive. (The Court dodged regulation of "outrageous" speech on the Internet by concluding that a Web posting by WBC was not properly made part of the plaintiff's case on appeal.) Indeed, that is often the point. So, too, do speakers frequently use public places to amplify or publicize their messages -- as the WBC has done with what can only be characterized as substantial success. The Court granted protection to this contestation of place (within the limits of reasonable, content-neutral, time, place and manner regulations). In sum, although many will no doubt share Justice Alito's aversion to the speech in question and WBC's tactics, Snyder v. Phelps is a very significant victory for public speech and contention.