Courting Opinion

First Amendment-wise, Snyder v. Phelps didn't seem like a difficult case.  It's a lawsuit against the Westboro Baptist Church, which picketed a military funeral (as they regularly do) based on their belief that America is being punished for its moral failings. They respected certain legal restrictions--they were orderly, and not close enough to disrupt the funeral--but their message was highly offensive. The original lawsuit was an action for intentional infliction of emotional distress, but the Court, 8-1, declared tort liability can't overcome the right to free speech.

I'd been worried.  The plaintiff, as might be expected, won a big jury award.  Then, as also might be expected, the court of appeals overturned that ruling.  So why was the Supreme Court taking it up?  I thought this might be close, even if precedent seemed to indicate this was lawful protest.

If anything, the majority didn't go far enough.  It seemed to support, in dicta, a state setting up Free Speech Zones as a proper solution to this sort of situation.  But if a state, before the fact, can tell you when and where you can speak, it's a heavy limitation.

The lone dissenter was Justice Alito.  His distinction--which seemed to be that offensive speech is protected as long as it's not extremely offensive--does not appear to be intellectually sustainable.  Just as worrisome, Justice Breyer, in a concurrence, tried to limit the Court's decision. He seems to be going on this kick trying to differentiate speech made over TV or the internet from other types of speech.  Looks like he's trying to lay the groundwork to make it easier to attack electronically spread opinions.  I certainly hope the rest of the Court ignores this path.