The Supreme Court struck a major blow for racial justice in 1954 when it outlawed racial segregation in public schools. But Brown v. Board of Education said nothing about legally enforced racial segregation in other public services or in public facilities.
Even so, the principle that discrimination on the basis of race violates the Equal Protection Clause was evidently just as applicable to segregation in public parks, golf courses, and swimming pools, as federal judges in the South quickly ruled. When those cases reached the Supreme Court, the justices summarily affirmed the rulings without comment.
As the episode illustrates, a new legal principle cannot be neatly confined to the case at hand. In a rule-of-law society, precedents have consequences; rulings have legs. So it was with the Supreme Court’s first blow against racial segregation. And so it may be with the federal government’s first direct challenge to legally enforced discrimination against gays and lesbians.
In deciding not to defend the constitutionality of the Defense of Marriage Act (DOMA), the Obama administration adopted for the first time the view that laws based on sexual orientation are constitutionally suspect and cannot be upheld without surviving some unspecified measure of “heightened scrutiny.” Attorney General Eric Holder listed four factors in his letter explaining why courts should be “suspicious” of laws based on sexual orientation.
Holder cited first “the significant history of purposeful discrimination” against gays and lesbians. He pointed next to the “growing consensus” that sexual orientation, like race, is an immutable characteristic and the “growing acknowledgment” that sexual orientation has no bearing on an individual’s ability to contribute to society. And, despite gains in recent years, he noted that gays and lesbians generally have had “limited political power” as a minority in society.
No court, federal or state, has yet to hold that laws based on sexual orientation are constitutionally suspect. Courts that have upheld bans on gay marriage have applied the relaxed “rational relationship” test. Courts that have struck down bans on gay marriage have hinted that a stricter test might be appropriate but have ended by saying that laws denying marriage rights to gays and lesbians have no rational basis because they serve no legitimate government purpose.
The DOMA case is pending before the federal appeals court in New York, but even before a ruling the Justice Department’s position is being extended into other matters. In a preliminary ruling last week [March 22], an immigration judge in New York City cited the government’s position in the DOMA case in allowing an Argentine woman a chance to challenge her deportation because she and her U.S. citizen wife were legally married in Connecticut in August. And a few days earlier [March 17], the Justice Department itself applied heightened scrutiny to governmental conduct based on sexual orientation in accusing the New Orleans Police Department of “bias-based profiling” against LGBT individuals.
In the immigration case, first reported in the Gay City News, Monica Alcota, who came to the United States 10 years ago, is claiming she is entitled to permanent residency status because of her marriage to Cristina Ojeda, a U.S. citizen — just as she would be if she were in a heterosexual marriage. Immigration judge Terry Bain allowed Alcota to petition the U.S. Citizenship and Immigration Services (USCIS) to be recognized as Ojeda’s spouse.
The doubts about deporting foreign spouses in same-sex marriages with U.S. citizens may be shared by immigration officials. Newsweek/The Daily Beast reported last week [March 25] that the directors of the Washington and Baltimore immigration offices have put deportation proceedings in such cases on hold pending further consideration of DOMA’s validity.
The Justice Department’s report on the New Orleans Police Department accused the force of “a pattern or practice of discriminatory policing” against, among others, African Americans, Latinos, and LGBT persons. As reporter Chris Geidner wrote last week [March 23] in the gay Washington publication Metro Weekly, the findings of discrimination against LGBT individuals were not only “notable on their own,” but also significant because of the constitutional standard used to judge the department’s treatment of LGBT individuals. Heightened scrutiny of discrimination by law enforcement on the basis of sexual orientation and gender identity was justified, the report stated, by “many factors . . . including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (“LGBT'”) individuals.”
For now, these developments are merely embryonic. To date, no one in the LGBT community has won vindication of any legal right because of the government’s position. But the Justice Department carries a big stick in federal courts. In Brown, the government sided with the plaintiffs and against the segregated school districts. The government’s support for desegregation over the next two decades helped stiffen the court’s resolve on the issue. Conversely, President Eisenhower’s failure to immediately endorse Brown gave segregationists room to mount resistance to the ruling.
The U.S. government did not participate in the Supreme Court’s most important gay rights ruling: Lawrence v. Texas (2005), which struck down state anti-sodomy laws. President Obama, who is reported to have been personally involved in the decision on DOMA, has for the first time put the government’s significant clout on the side of constitutionalizing gay rights. The next move is up to the courts.
Monday, March 28, 2011
Monday, March 21, 2011
‘Black on Black’ Racial Profiling: Why?
Two weeks after taking office, New Orleans Mayor Mitch Landrieu held a town hall meeting last May about the city’s beleaguered police department. As reported by the New Orleans Tribune, Landrieu closed with a campaign-style promise: “I am not going to be commander-in-chief of a police department that engages in racial profiling.”
Ten months later, the U.S. Justice Department has thrown cold water on Landrieu’s hopeful pledge. In a relentlessly damning, 158-page report, a Justice Department task force has found “reasonable cause to believe” the city’s police department guilty of “a pattern or practice of discriminatory policing,” including “bias-based profiling” against African Americans, Latinos, and gays, lesbians and transgender persons.
The evidence of racial profiling is simple statistics. In the period covered in the study — January 2009 through May 2010, at the start of Landrieu’s tenure — New Orleans police officers shot 27 civilians, all of them African American. For the year 2009, police arrested 500 young black males for serious offenses but only eight young white males. Adjusted for population, that amounts to a 16 to 1 black/white ratio — more than five times as great a disparity as the 3-to-1 ratio reported nationally.
For someone like myself who came of age in the 1960s, the figures are not only disturbing but also deeply disappointing. Back then, urban police departments were close to lily white. New Orleans had 54 African American officers out of a total force of 1,308, according to data in the 1968 Kerner Commission report. Integrate police departments, many of us assumed, and the problem would be if not eliminated at least substantially reduced.
Today, New Orleans is a majority-black city with a majority-black police department. Yet the kind of race-based harassment and intimidation that the Kerner Commission cited as one of the causes of racial unrest and disorder appears to persist. “Black on black” racial profiling must be part of the problem. Why?
“That’s a question that a lot of people have in their mind,” says David Harris, a professor at the University of Pittsburgh School of Law and author of the book Profiles in Injustice: Why Racial Profiling Cannot Work. The explanation, he says, lies not with the race of the officers involved, but with the training, customs, and culture within the police department. And the answer is not simply to identify and get rid of the bigots within a department, but to change the way the department operates.
“Black officers are going to be trained like all the others,” Harris explains. “They’re going to want to fit in just like all the others.”
As Harris notes, African American officers’ role in racial profiling has been documented before. A Justice Department study of police-civilian contacts a decade ago found widespread complaints of race-based traffic stops by African American drivers. The officers complained of were as likely to be black as white, Harris recalls.
In like vein, the Rampart Division scandal in Los Angeles in the late 1990s involved abuse by Latino officers against Latinos. “You’ve got minority cops beating up minorities,” an ACLU lawyer told me for my CQ Researcher report, “Policing the Police” (March 17, 2000).
The Justice Department study of the New Orleans force, requested by and now embraced by Landrieu as well as his (white) chief of police, Ronal Serpas, paints a portrait of a thoroughly dysfunctional department. The report found routine use of “unnecessary and unreasonable force.” Even so, no violation of the department’s use-of-force policy has been found in the six years reviewed by Justice Department investigators.
Detentions without reasonable suspicion were also found to be routine. Out of 145 arrest reports reviewed in detail, “a significant number … reflected on their face apparent constitutional violations,” the report stated. One reason, the investigators surmised, was “a strong and unyielding pressure” on officers to keep their arrest numbers high.
Systemic bias shows up in the department’s practices in dealing not only with African Americans, but also with women, Latinos, Vietnamese, and the LGBT community. Sexual assault and domestic violence cases are poorly investigated, the report says. Gay men complain of fabricated accusations of solicitation, transgender persons of harassment. The force has “no meaningful capacity” to deal with the limited-English-proficiency population. In a city with growing numbers of Vietnamese and Latinos, the department relies on only one Spanish-speaking and one Vietnamese-speaking officer to help handle calls and investigations.
The Justice Department report closed with 16 pages of recommendations covering everything from recruitment, training, and supervision, through evaluation and accountability procedures. On bias-based profiling, the report calls not only for training and explicit policies, but also for data collection to ascertain the extent of profiling and to identify individual officers or units responsible. Harris says similar steps have helped reduce racial profiling in other police forces, including Pittsburgh’s, which was under federal court supervision for five years from after a similar Justice Department investigation.
The report on the New Orleans force is expected to result likewise in a consent decree with federal court supervision for a period, according to the New Orleans Times Picayune. Encouragingly, Serpas appeared at the March 17 press conference in New Orleans with the Justice Department’s Tom Perez, head of the civil rights division, to release the report. “I believe we will make these reforms a reality,” Serpas said.
Ten months later, the U.S. Justice Department has thrown cold water on Landrieu’s hopeful pledge. In a relentlessly damning, 158-page report, a Justice Department task force has found “reasonable cause to believe” the city’s police department guilty of “a pattern or practice of discriminatory policing,” including “bias-based profiling” against African Americans, Latinos, and gays, lesbians and transgender persons.
The evidence of racial profiling is simple statistics. In the period covered in the study — January 2009 through May 2010, at the start of Landrieu’s tenure — New Orleans police officers shot 27 civilians, all of them African American. For the year 2009, police arrested 500 young black males for serious offenses but only eight young white males. Adjusted for population, that amounts to a 16 to 1 black/white ratio — more than five times as great a disparity as the 3-to-1 ratio reported nationally.
For someone like myself who came of age in the 1960s, the figures are not only disturbing but also deeply disappointing. Back then, urban police departments were close to lily white. New Orleans had 54 African American officers out of a total force of 1,308, according to data in the 1968 Kerner Commission report. Integrate police departments, many of us assumed, and the problem would be if not eliminated at least substantially reduced.
Today, New Orleans is a majority-black city with a majority-black police department. Yet the kind of race-based harassment and intimidation that the Kerner Commission cited as one of the causes of racial unrest and disorder appears to persist. “Black on black” racial profiling must be part of the problem. Why?
“That’s a question that a lot of people have in their mind,” says David Harris, a professor at the University of Pittsburgh School of Law and author of the book Profiles in Injustice: Why Racial Profiling Cannot Work. The explanation, he says, lies not with the race of the officers involved, but with the training, customs, and culture within the police department. And the answer is not simply to identify and get rid of the bigots within a department, but to change the way the department operates.
“Black officers are going to be trained like all the others,” Harris explains. “They’re going to want to fit in just like all the others.”
As Harris notes, African American officers’ role in racial profiling has been documented before. A Justice Department study of police-civilian contacts a decade ago found widespread complaints of race-based traffic stops by African American drivers. The officers complained of were as likely to be black as white, Harris recalls.
In like vein, the Rampart Division scandal in Los Angeles in the late 1990s involved abuse by Latino officers against Latinos. “You’ve got minority cops beating up minorities,” an ACLU lawyer told me for my CQ Researcher report, “Policing the Police” (March 17, 2000).
The Justice Department study of the New Orleans force, requested by and now embraced by Landrieu as well as his (white) chief of police, Ronal Serpas, paints a portrait of a thoroughly dysfunctional department. The report found routine use of “unnecessary and unreasonable force.” Even so, no violation of the department’s use-of-force policy has been found in the six years reviewed by Justice Department investigators.
Detentions without reasonable suspicion were also found to be routine. Out of 145 arrest reports reviewed in detail, “a significant number … reflected on their face apparent constitutional violations,” the report stated. One reason, the investigators surmised, was “a strong and unyielding pressure” on officers to keep their arrest numbers high.
Systemic bias shows up in the department’s practices in dealing not only with African Americans, but also with women, Latinos, Vietnamese, and the LGBT community. Sexual assault and domestic violence cases are poorly investigated, the report says. Gay men complain of fabricated accusations of solicitation, transgender persons of harassment. The force has “no meaningful capacity” to deal with the limited-English-proficiency population. In a city with growing numbers of Vietnamese and Latinos, the department relies on only one Spanish-speaking and one Vietnamese-speaking officer to help handle calls and investigations.
The Justice Department report closed with 16 pages of recommendations covering everything from recruitment, training, and supervision, through evaluation and accountability procedures. On bias-based profiling, the report calls not only for training and explicit policies, but also for data collection to ascertain the extent of profiling and to identify individual officers or units responsible. Harris says similar steps have helped reduce racial profiling in other police forces, including Pittsburgh’s, which was under federal court supervision for five years from after a similar Justice Department investigation.
The report on the New Orleans force is expected to result likewise in a consent decree with federal court supervision for a period, according to the New Orleans Times Picayune. Encouragingly, Serpas appeared at the March 17 press conference in New Orleans with the Justice Department’s Tom Perez, head of the civil rights division, to release the report. “I believe we will make these reforms a reality,” Serpas said.
Monday, March 14, 2011
Supreme Court’s Feckless Surrender to Gerrymandering
It’s that time of the decade again: time for legislative and congressional redistricting by state lawmakers or, in a few states, specially created commissions. The Supreme Court struck a major blow for political democracy a half century ago by establishing the “one person, one vote” rule for electoral districts. In the past decade, however, the court has failed to finish the job by leaving the time-dishonored practice of partisan gerrymandering effectively immune to judicial oversight.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure — outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters — about 40 percent — were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure — outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters — about 40 percent — were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.
Sunday, March 6, 2011
Vindicating Free Speech for Those Who Hate
The Westboro Baptist Church is a hate group. Its obsessively anti-gay founder, the Rev. Fred W. Phelps Sr., and Phelps’ family members who make up most of the congregation of his Topeka, Kan., church are hateful in thought and deed. No truly God-loving Christian would choose the funeral of a fallen serviceman to air such hateful views as “God hates fags” or “Thank God for dead soldiers.”
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern — specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message — and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards — for example, “You’re Going to Hell” — as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern — specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message — and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards — for example, “You’re Going to Hell” — as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.