Associate Justice Samuel A. Alito, Jr. wrote an outstanding dissenting opinion in Snyder v. Phelps, et al No. 09 - 751, (slip opinion March 2, 2011). In short Sam Alito gets the point that my rights end at the point where your nose begins.
The hate group masquerading as a church in this case is called the Westboro Baptist Church located in Topeka, Kansas. The infamous Fred Phelps founded this bizarre hate group and cloaked it with the trappings of religion. If anyone wonders what is the matter with Kansas they can begin their inquiry with this group. Westboro is to Christianity what al Qaeda is to Islam. Each is a extreme fringe group hell bent on perverting faith into radicalized, hurtful, and manipulative politics. It is my opinion that Westboro and al Qaeda are not essentially religious in character.
Westboro decided to travel to Maryland for the sole purpose of inflicting emotional pain on the family of fallen Marine Corps Lance Corporal Matthey Snyder. Westboro takes vulgar and reprehensible signs to the funeral and they yell hateful epithets at the grieving family. They get attention from the television news media. In this case they posted a hate filled tirade aimed directly at the parents of the dead Marine. Some religion!
The dead Marine's father launched a legal battle against Westboro filing suit in Tort for the Intentional Infliction of Emotional Distress (IIED). Snyder prevailed at trial. The Fourth Circuit overturned the state court saying that the First Amendment barred the tort claims against Westboro. The Supreme Court granted certiorari and restricted its opinion to the issue presented in the petition for certiorari.
A pained Associate Justice William Breyer wrote a concurring opinion in which he laid out the problem. Breyer said:
"That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of "public concern.""Associate Justice Alito did not refuse to look beyond the narrow scope of the petition. I commend him for his analysis of the law in this case. Here is a pertinent part of his excellent dissent:
"The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral. See ante, at 10–11. It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante, at 11, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.
"The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See National Archives and Records Admin. v. Favish, 541 U. S. 157, 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrudes upon their . . . grief,” ibid., and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern."
The Court's opinion, Breyer's concurrence, and Alito's dissent are on line at the Supreme Court's home page at http://www.supremecourt.gov/.