Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Friday, March 4, 2011

Virtual Jurisprudence

Earlier this week, the United States Supreme Court decided Snyder v. Phelps. The Court's opinion can be found on the excellent SCOTUSblog site here.

In that case, members of the infamous Westboro Baptist Church conducted a protest near the funeral service held for Matthew Snyder, an American serviceman killed in Iraq. His father sued the Church members, claiming that their extreme and outrageous statements had caused him severe emotional distress. A jury found for Mr. Snyder and awarded him more than $10 million in compensatory and punitive damages. The United States Supreme Court held that the First Amendment protected the speech and barred the claim.

In the interest of full disclosure, I should note that I was counsel of record for amicus curiae the Anti-Defamation League in this case. We filed a brief on behalf of neither party, arguing that the case offered "an extremely poor vehicle for rendering the type of expansive ruling the petition for a writ of certiorari and the certified questions appear[ed] to invite." Our brief can be found here as well. The Court apparently agreed, stating "Our holding today is narrow .... [T]he reach of our opinion here is limited by the particular facts before us."

In many respects, the Court's opinion is unremarkable. The result follows logically from existing precedent, including the Court's decision in Hustler Magazine v. Falwell, which can be found here. Justice Roberts' majority opinion has a terse, businesslike, almost surgical quality to it.

Further, it is unremarkable that this unremarkable case has received a remarkable amount of attention. This drama features the kind of players who draw the spotlight: on one hand, we have the suffering and sympathetic father of a slain war hero; on the other, we have the wild-eyed merchants of homophobic hate speech. Of course, the star of the show turns out to be the First Amendment, which, as countless editorials have reiterated in the past few days, protects even speech that outrages us and that we find morally obnoxious.

But one of the most interesting aspects of the case is a player that is waiting in the wings and that the Court hints might change the plot line.

The Church had posted some material regarding the funeral and the Snyders on its Web site (a posting that the parties called the "epic"). Because Mr. Snyder did not raise the epic in his petition for certiorari it was not before the Court. The Court observed that in light of this--and in light of "the fact that an Internet posting may raise distinct legal issues in this context"--it would not consider the epic in deciding the case. In a similar vein, Justice Breyer's concurring opinion emphasized, in its first paragraph, that the Court's ruling does not "say anything about Internet postings."

I find this puzzling and intriguing.

The Court ruled in favor of the Church primarily because (a) the Church's speech related to a matter of public concern and (b) allowing a jury to hold someone liable for engaging in such speech on the basis that the jury finds it "outrageous" does not afford sufficient protection. I am puzzled as to why the Court would think that this analysis might apply any differently to speech that takes place on the Internet. I don't see why it would, but I am open to suggestions.

And I am intrigued because I think these disclaimers reflect the Court's anxiety about new technologies and new media. In this respect, the Roberts Court is like every Supreme Court that has come before it.

In the twentieth century, the Court worried about the broadcast airwaves--the "intruder," as the Court called it once, that follows us through closed doors into our very homes.

But the latest intruder is even more daunting. We will say its name. But we will not talk about it unless and until we absolutely have to do so.

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