Herein lie my impressions from a little accidental listening via CSPAN to the Fred Phelps/Snyder Supreme Court hearing:
1. I’m not a lawyer!
2. The following quotes haven’t been checked against a transcript!
3. I only listened to a few minutes of the arguments!
4. But what the heck, I share it anyway! Because I can.
“We don’t follow people around…we were a thousand feet away.” — Margie Phelps
Margie Phelps (serving as their lawyer) tried to stay rooted in the facts of the case about “this little church in Kansas” but the judges wanted her to talk in general about the law and where distinctions could be made; to me she was a little slippery as to the most important parts of her argument which was basically that both proximity and questions of public vs private speech are what matters, the slipperiness coming in with which mattered more and where the lines were. Several justices asking, in various ways, “Who’s a public figure?” When pressed, she said in part, “I don’t know if in the context of a war where everyone is thinking about these soldiers every day I can give a definitive answer to that.”
So if there’s a war on everything someone might decide relates to a war is public speech, it’s almost as if she’s saying, “If I imagine many people are thinking about this then it’s public speech.” The real question: what’s the distinction between what they imagine is true in their head and what’s reeeeeeeal……..
The only thing I heard where they might have a case for protection was in saying the Snyders, because they made some public statements about the war and being against it, made themselves and by extension their son and his funeral into public figures, but it didn’t sound like the justices were convinced by this point. Roberts, among others, asking about hypotheticals like if someone put an obit in the paper and nothing else would that be public speech and enough to make them a target? She said no it wouldn’t be public speech but they wouldn’t target that person [which wasn’t the question, Roberts saying, well, right because that wouldn’t give you maximum visibility]. She also clearly didn’t want the decision to rest on her interpretation of the Snyders as having made themselves public figures since it didn’t sound like anyone was too convinced. Now that I think about it, she should try and be a lot clearer on this point and in protecting her free speech openly advocating for what she would see as violations of privacy.
Related: Breyer said he wanted her to help him find a distinction, a couple others did to — not wanting, I presume, to have this stupid case end up resulting in unforeseen restrictions on public speech; to allow this tort [intrustion claim] to exist but not allow for it to interfere with an important public message.
Sotomayor said she could see the signs as being political and directed as public speech but “what you have not explained to me is how your speech to the Snyders is defined as public speech….at what point do we take personal attacks and call it public speech?” Which seems to be a good question. If the signs don’t mention the guy or his family by name but the only reason they are there is because of him then is the publicly framed speech still public or private? Margie Phelps said she did not agree with how Sotomayor framed the issue but didn’t have much of a comeback.
Phelps repeatedly talked about proximity and how “You’ve got to be up in the grill” and referenced abortion cases where people blocked access saying the question there was if the speech could be avoided through practical means, close the blinds, so to speak — so by extension since they, the Phelps’, could easily be ignored it was okay. (I guess this is the “We’re such lousy protesters it’s easy to miss us” argument and while silly it’s also something I’ve mulled over for almost a full minute since it links effectiveness to physical proximity. I think.) Also at issue, in my own head, is the relevance of the location itself to the protest. Abortion protests, obnoxious as they may be, at least follow some logic in where they locate themselves whereas The Westboro Baptist Church cast a much wider net in terms of relevance and location. Since, in their view, anything and everything relates to God and they have him on speed dial that seems to mean little if nothing is off limits including going to West Virginia to claim the coal mine explosions were the work of a god angered by email messages sent to their church from somewhere in the state of West Virginia.
The question I wish someone on the Supreme Court would ask Margie Phelps is: prove it. Prove what you say is true. That’s clearly not the standard and I’m glad it’s not for a lot of reasons but it would make CSPAN all the more thrilling.
Important: If depressed or otherwise out of sorts after having read this, please watch: Louis CK on gay marriage (YouTube; 3.33 minutes). Not work-friendly, but neither is Fred Phelps.