"Public concern" in Snyder v. Phelps

[Malla Pollack]

To protect free speech, in cases of doubt one bends towards protecting
speech. Which is why the legal rule is that the court must check the facts
itself -- juries cannot be trusted not to run off into emotional anger at
the message.  Juries can rule against liability, but after a jury rules For
liability; a court must check to make sure.
      The place of "non-centrist" family/sexual groups in the polity is most
definitely a matter of public concern.  (Or why the current arguments about
military recruiters on campus; don't ask don't tell being repealed or not;
DOMA; the definition of marriage etc).   Something  does not stop being a
matter of public concern because the public consists of individuals each of
whom has emotions.  I think that the Court go this one right -- mixed
public/private matters count as public matters-- what is determinative is
that the Church was vocal on this issue long before it heard of they
Snyders; the Snyders were an example of the cause the Church was talking
about; the Snyers were not the REASON the Church were protesting
homosexuality.
     As for the elements of the torts alleged -- The protesters were not
even easily within sight of the funeral procession. They did not intrude on
anyone's "seclusion"- even if, arguendo, a funeral of this sort is a
"secluded" location. As for government actors, the court imposing civil
liability on the protesters counts -- as does the public imposition of legal
rules in defining the torts alleged -- NY Times v Sullivan, remember.
      Malla Pollack

On Thu, Mar 3, 2011 at 7:06 AM, Jon Roland <jon.roland at constitution.org>wrote:

>  The Court did not get it right in this case, but that was because it was
> not argued as well as it should have been on behalf of Snyder, et al..
>
> First, it is not correct to base the decision on the First Amendment. That
> only restricts government actors, not private actors. It is properly a case
> of equity over the private rights of the opposing actors in conflict.
>
> The argument could have acknowledged that the position of Phelps, et al.,
> was the expression of a matter of public concern, while demanding that such
> expression conflicted with the privacy rights of Snyder, et al., and that to
> resolve the conflict, it was reasonable to put time, place, and manner
> restrictions on Phelps, et al. In other words, to separate them by a
> reasonable distance.
>
> There have to be bounds on inflicting emotional distress on a private party
> as a way to get public attention. If Phelps, et. al., had shouted their
> message with a megaphone into the ears of Snyder, et. al., that would be a
> clear violation, as would pointing an unloaded gun at them. So there are
> ways to inflict emotional distress for an expression of public concern that
> cross the line. The question is where to draw that line. In my view, the
> Court, instead of trying to draw that line carefully as a matter of equity,
> chose instead to make it a binary decision, on an incorrect constitutional
> ground. The Court is a court of equity as well as a court of law, and not
> all cases it hears are properly decided on constitutional grounds. If the
> aim was a prudential one of avoiding future litigation exploring the
> boundaries of how much emotional distress is too much, then it may have done
> that, but such issues are not properly avoided by courts. Ultimately, it is
> juries who should decide where to draw the lines. The court erred in not
> leaving it to them.
>
> -- Jon
>
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