Kagan asks key question in Snyder v. Phelps arguments

Thursday, October 7, 2010

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The newest member of the U.S. Supreme Court, former Solicitor General and law professor Elena Kagan, showed her understanding of First Amendment principles with a penetrating legal question yesterday in Snyder v. Phelps — the highly anticipated case involving protests near a military funeral.

Kagan referred to a key passage from the Supreme Court’s celebrated Hustler Magazine v. Falwell decision (1988) in which the Court addressed the intersection between the First Amendment and a civil cause of action known as the intentional infliction of emotional distress.

In the funeral-protest case, Albert Snyder — father of deceased Marine Matthew Snyder — sued Fred Phelps and other members of his Westboro Baptist Church after they picketed near his son’s funeral and then posted information in an online “epic.” Snyder contends that the picketing signs and the epic invaded his privacy and caused him emotional distress.

A chief claim by Snyder involves the intentional infliction of such distress — where one party engages in outrageous conduct that goes beyond the pale of social decency and causes another severe emotional pain.

The Phelpses counter that the Hustler ruling protects their offensive expression. In Hustler, a unanimous Court led by then-Chief Justice William H. Rehnquist ruled that the First Amendment protected pornographer Larry Flynt’s right to publish an obnoxious parody about televangelist Jerry Falwell. In his opinion, Rehnquist wrote:

“‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views or perhaps on the basis of their dislike of a particular expression.”

Kagan asked Snyder’s attorney, Sean Summers, this question in oral arguments yesterday: “Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this … .” She quoted the above passage and asked Summers: “How is that sentence less implicated in a case about a private figure than in a case about a public figure?”

Summers answered that Hustler shouldn’t apply in a situation involving a private funeral.

But many First Amendment advocates worry about the consequences of imposing liability on speakers who say things deemed “outrageous.” Phelps in her argument emphasized that an “outrageousness” standard had no place in limiting speech on public issues.

With her question, Justice Kagan — who wrote about many First Amendment issues in her academic career — identified this pressing concern.

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