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March 04, 2011

Military Funerals and the Failure of Chief Justice Roberts

Chief Justice John Roberts is clever and brazen, but he lacks integrity. The military funeral case, Snyder v. Phelps, is a good example of opinion writing gone wrong. Roberts argues that the predominant theme of the material on the picket signs was of public concern expressed in a place that the demonstrators had a right to be and that it was, therefore, protected. He argued that speech cannot be suppressed simply because it is upsetting or arouses contempt. And he argued that the elements of the tort of intentional infliction of emotional distress are too subjective, that they could lead to suppression of constitutionally valuable speech.

You might think from the opinion that Roberts was applying a standard public/private distinction and was not creating new law. In fact, as everyone who knows first amendment law including Roberts is aware, Hustler Magazine v. Falwell was the first case to place first amendment limits on the tort of intentional infliction of emotional distress and, then in a quite limited way. It said that the first amendment is a defense against a claim brought by a public figure or a public official unless the defendant knowingly made false statements. The case goes no further. It certainly did not decide that the intentional infliction of emotional distress gives rise to a first amendment defense in the context of a private person when the speech is of private and public concern. That was the issue to be decided in Snyder (though the cert petition was so poor on this that the case might have been dismissed as improvidently granted). Perhaps I am too picky, but I regard it as a minimum requirement of judicial integrity that a justice state what the state of the law is and what needs to be decided, as opposed to writing as if nothing new under the sun is contained in the opinion.

The opinion also does not adequately confront the fact that speech on public issues is often abridged, e.g., some types of advocacy of illegal action, some types of defamation, and violations of intellectual property. Implicitly, Roberts may be dealing with these and other cases by suggesting that you cannot suppress speech because it is upsetting. True, but the tort here does not focus whether the defendant was upset, but whether the speech caused severe emotional distress. If Roberts actually faced the tough issue in the case (if it is a tough issue), he would need to weigh the intentional infliction of emotional distress against the speech values associated with being able to demonstrate about issues of private and public concern near a funeral. And, I think integrity demands the concession that limiting speech in this regard does not wholly suppress speech because it leaves open the possibility of employing such speech virtually everywhere else in the world.

Finally, Roberts suggests that it might be permissible to ban demonstrations near funerals because a ban of that character would be content neutral. But this would require a lack of integrity as well because everyone in the country knows that such bans have been passed in response to the demonstrations of Fred Phelps. Those bans cover protected speech and what (in my view) should be unprotected speech indiscriminately.  If Fred Phelps speech is constitutionally protccted, legislation passed pursuant to a purpose to prevent it should similarly be unconstitutional. 

I do not agree with the constitutional interpretation of the first amendment announced in Snyder. But that is not the point of this post. Wholly apart from my view of the merits, I think the opinion is not a good piece of advocacy and it is even worse as a judicial opinion. John Roberts had an excellent reputation as an advocate. But he will never be a good justice until he starts writing opinions which accurately state what is at stake in the cases presented and opinions which face up to hard issues when they are presented instead of glossing past them. To put it another way, the Chief Justice should at least sound like the umpire he promised to be. And people who try to sound like umpires are more likely to become umpires.

Posted by Steve Shiffrin on March 4, 2011 at 08:33 AM | Permalink


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Lacks integrity? I don't know that pronouncing moral judgments based on the relative inadequacy of an opinion or advocacy is appropriate. Much less on a site like MOJ.

Posted by: John | Mar 4, 2011 9:18:13 AM

I think you have made a fair comment. I do not mean to suggest that he
lacks integrity on the whole. I have know way of knowing. I do think he
lacks integrity as an opinion writer (which I take to be a crucial
function of a Justice) and I base that not only on the Snyder opinion,
but on it in combination with many other opinions.

Posted by: Steve Shiffrin | Mar 4, 2011 9:30:01 AM

Steve, the "lacks integrity" charge is both incorrect and unfair. In my view, you are not reading the 8-justice majority's (surely, if Roberts is "clever", "brazen", and "lacks integrity", then so are and do Justices Sotomayor, Kagan, and Breyer?) opinion as it should be read, but this is not a blog about First Amendment doctrine (which, like you, I know pretty well, and which -- we agree -- is far-from-perfect).

Posted by: Rick Garnett | Mar 4, 2011 9:30:15 AM

Rick, I think Steve's language is strong, perhaps stronger than I would adopt, but I think he ought to be given his due. As Steve notes, of course, he means integrity in the sense of fully carrying out the opinion function of not only resolving the case, but doing so in a way that confronts all the relevant difficulties. There are at least reasonable arguments that in this case and others (Stevens and Rumsfeld in the FIrst Amendment, and others elsewhere in constitutional law), Roberts overemphasizes what is easy about the case and underemphasizes what is difficult. As I write in a post on Prawfs this morning, this lends an air of grace and simplicity to his opinions, but it may not always be fully earned simplicity. First Amendment doctrine, as all of us acknowledge, is far from perfect. Roberts may be complimented for improving it. But what I take Steve to be asking, and what I am certainly asking, is whether he is doing so by confronting or avoiding some of the difficulties that need to be resolved. I have no problem, incidentally, asking whether some of the other Justices also merit this charge, although it seems inaccurate about Breyer, whose First Amendment jurisprudence may be problematic for other reasons, but who at least filed a concurrence in Snyder to emphasize his own view of the matter.

Posted by: Paul Horwitz | Mar 4, 2011 9:42:12 AM

And, I think integrity demands the concession that limiting speech in this regard does not wholly suppress speech because it leaves open the possibility of employing such speech virtually everywhere else in the world.

Really? If you let the IEED claim here stand, where else in the world could Westboro have held its demononstration knowing that it was safe from this type of suit?

Posted by: James Grimmelmann | Mar 4, 2011 10:00:28 AM

Mr. Shiffrin, please give the names of the other opinions that you believe show a lack of integrity, so others may read and judge for themselves. Also, do you have any thoughts as to *why* the Chief Justice, in your opinion, shows this lack of integrity? For example, in this case, was he just too obtuse to realize what was really at stake in your eyes (doubtful), or was he being sneaky to pass off the outcome he wanted and make it seem easier than it was (do you believe he wanted to find for the Phelps's church?)? On one level, we have a practicing Catholic Chief Justice who is finding *for* the folks who picketed a Catholic funeral -- that could be seen as showing real integrity: finding what he believes the law requires, despite presumably personal offense to the actions in question.

Posted by: DFoley | Mar 4, 2011 10:18:25 AM

This is easily the most disappointing post I've read in all the years I've been following Mirror of Justice.

Posted by: dp | Mar 4, 2011 10:26:11 AM

What in my account of the opinion is incorrect? I do think other
justices bear a responsibility for joining the opinion, but the author
of the opinion bears principal responsibility. I do think the ethics of
Supreme Court opinion writing and the appropriate balance between
speech that intentionally inflicts emotional distress at a funeral
(which is morally indefensible) and public discourse in a democracy is
an appropriate subject for this blog. I do not believe that victims of
such discourse (and I include public officials - I do not think Falwell
settled the issue of funerals even for public persons) should be
sacrificed as means for an instrumental end - particularly marginal
gains toward political ends since the speech could be given elsewhere.
I believe that conclusion fits comfortably in a Catholic view of
political morality, and even though you disagree, I am quite surprised
(even dismayed) that you do not think the subject fits within this blog.

Posted by: Steve Shiffrin | Mar 4, 2011 11:08:47 AM

I recommend reading the dissent on this issue.

Posted by: Steve Shiffrin | Mar 4, 2011 11:10:57 AM

Geoff Stone in the Tulane law review discusses five opinions of Chief
Justice Roberts, making similar (even harsher criticisms). In addition
to the cases he discusses, I would add a later case, United States v.

Posted by: Steve Shiffrin | Mar 4, 2011 11:15:17 AM

I am going to delete your post. If you put it back up with a civil
explanation supporting your view, I will leave it up.

Posted by: Steve Shiffrin | Mar 4, 2011 11:18:01 AM

For what it's worth, and in connection with my previous post on Snyder here (which I hope was within blog bounds), I agree with Steve on the merits of the comparison with Falwell. I agree especially because I think the Court was mistaken (not badly intended, not sneaky or unfair) not to consider the "epic" material. I agree with Justice Alito that the epic material gave needed context to the nature of the funeral protest, and was no different than evidence of what the WBC had done at funerals beforehand (which the Court countenanced).

Like Falwell, and looking at all of the record evidence, Snyder presented evidence of speech of both public and private concern. The signs that addressed to the Snyders telling them that they were going to hell and that God hated them (and/or their son), coupled with the material directly addressed to them in the epic, was intended to inflict a private hurt on them specifically. That is true even if other material at both the picket and the epic ought to be considered as very much a matter of public concern. The outrageousness of the statements, the context in which they were delivered, the fact that they were targeted against undeniably private people -- all of that suggests that at the very least, the jury ought to have been able to consider *those* statements in deciding whether there was an actionable IIED claim. I don't agree that it is at all clear that, as the Court says, the "overall thrust" of the speech was public, and I don't agree that that should be the test.

But I believe that notwithstanding all of these disagreements, the Court was acting and writing in good faith. There are lots of people that don't agree with me whom I respect very much on this case -- a hard one -- and I hope that they respect me as well, notwithstanding our disagreement.

Posted by: Marc DeGirolami | Mar 4, 2011 11:26:56 AM

What does this have to do with Catholic legal theory?

Posted by: Ctd | Mar 4, 2011 11:43:25 AM

In a rush to take out my dog for a walk, I neglected to answer a part
of your comment to which I meant to respond. Why did the Chief Justice
write an opinion that displays a lack of integrity in my view. I do not
think Roberts was trying to fool anyone. As I said in the post, I think
that he thinks like an advocate. If he had not done so, actually he
could have made better use of the Falwell case which did not reach the
issue presented, but its rationale can easily be argued to sweep beyond
its holding. On the other hand, if he faced the actual values at stake
in a realistic balance, he would have made it harder on himself.

Posted by: Steve Shiffrin | Mar 4, 2011 11:57:35 AM

I do not have time to explore this now, but I do think Catholic Social
Theory has a lot to say about outcomes in free speech cases and gave a
talk on the subject at Villanova a couple of years ago. I also think
Catholic Social Theory should have something to say about the ethics of
judicial opinion writing.

Posted by: Steve Shiffrin | Mar 4, 2011 12:01:35 PM

Ctd, thinking hard about whether and under what circumstances we ought to permit people to speak as they will at funerals -- which are some of the most meaningful and difficult periods of people's lives, times of life in which we remember and mourn the dead exactly at least in part for religious (very much including Catholic) reasons -- implicates, I think, both Catholic and legal theory profoundly.

Posted by: Marc DeGirolami | Mar 4, 2011 12:05:37 PM

"was intended to inflict a private hurt"

It was intended to state an opinion that hurt people. We are allowed to do this in this country. Hateful stuff is written and spoken all the time. It hurts people. When people say gays are immoral or going to hell, e.g., it hurts. It is also allowed.

It is shocking to me, to be passionate about it, that emotionally laden speech involving public knowledge somehow can be actionable. If I say something real hateful, but true, I thought it was protected. This includes something like two parents were horrible parents and because of it, their child was damned. Let's say a gay child committed suicide and it turns out the parents were hateful and didn't support him. This is public knowledge. And, I publicly make it know I think they were monsters. Can I be sued?

What if I have an alternative memorial service a block away that honored his memory, while the parents have one in an anti-gay church and publicly make it known they are sorry their son died, but he was a sinner etc. I might be upsetting them by doing this. Maybe, I should be sued?

"undeniably private people"

Arguably they are. But, they publicly made known their child's death. The military death here was a matter of public concern. And, the hate group here expressed opinions about it publicly. "Private" people repeatedly have their lives made public in cases of this nature. See, e.g., Time v. Hill. I think beliefs about homosexuality are more seriously in this context in various ways that the ad in Hustler. If that is protected, I think if anything this might be an easier case, at least in some ways.

Posted by: Joe | Mar 4, 2011 12:18:28 PM

I agree with Steve on his main substantive points: that Snyder effects an extension of Faldwell without acknowledging this (i.e., this is new law, as applied to private individuals); that the case is much more difficult than presented in the majority opinion; and that if we take the opinion seriously, it is difficult to see how an entire ban on "speech near funerals" would be justified under Snyder--indeed, the application of IIED law is "content neutral," in the sense that it would apply to any subject matter so long as the elements of the tort are present.

I don't find it helpful to characterize these problems as a "lack of integrity," which carries with it many assumptions regarding motive and approach (and which, in my opinion, would have to apply to all of the justices who joined the opinion without further comment). It's sufficient to address the legal problems, such as they are.

Posted by: Mark | Mar 4, 2011 12:28:23 PM

I, too, am puzzled by Prof. Garnett's comment. It seems to me that the First Amendment is particularly intimately tied to Catholic Social Doctrine, even in his own scholarship. But beyond that, what aspect of the law is not touched by CSD? If the law facilitates life together as human beings, I cannot think of any. One of the major themes of this blog (at least, I thought) is engaging the world from a Catholic perspective, and that the Catholic (Christian, etc.) identity is not to be limited to an hour on Sundays.

Posted by: acw | Mar 4, 2011 12:35:22 PM

I concur with others who wonder why Roberts alone "lacks integrity" since others joined the opinion. Also, it is not like this sort of opinion is unique. The post doesn't really convince Roberts is uniquely bad here.

Posted by: Joe | Mar 4, 2011 12:37:42 PM

Joe, respectfully, I disagree. Suppose that the WBC actually did not believe at least some of the things that it was saying (either on the epic or at the picket). Suppose it directed some of its statements, as was the case here, to the Snyders specifically, e.g.:

"You're going to Hell"; "God hates you"; "God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil . . . Albert and Julie [Snyder] RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery."

Suppose that the entire reason they chose these words was to humiliate the Snyders, to inflict an emotional wound.

If that were the case, this would seem to be speech of a purely private concern. And because it is outrageously offensive when delivered in the context of a funeral, tort principles might apply. The real case is more difficult because there was other material which involved matters of public concern, and because the WBC obviously intended in part to use the Snyders as vehicles for its message (in part, but not necessarily entirely -- perhaps they wanted to humiliate and even intimidate as well as to speak publicly). That makes it a mixed question, and a difficult one.

On the question whether these were private people, I don't agree that the fact that the media or whoever takes an interest in the goings on of private people makes them public figures. Making public the death of a family member does not make one a public figure; if it did, everyone who announced the death of their family members would be a public person.

Posted by: Marc DeGirolami | Mar 4, 2011 12:47:38 PM

"What does it have to do with Catholic legal theory?"

Justice requires the Truth of Love, which is why to say that The Catholic Church, out of authentic Love and respect for the inherent dignity of all persons, who, regardless of their race and ethnicity, have been created equal as persons while being complementary as male and female, teaches that we must never condone homosexual sexual acts or any sexual act that demeans the inherent dignity of the human person, is not to say, "God Hates Fags". In regards to Catholic Legal Theory, the difference that makes all the difference is the Truth of Love.

Posted by: Nancy D. | Mar 4, 2011 12:48:59 PM

>>Catholic Social Theory should have something to say about the ethics of judicial opinion writing.<<

Really? I'm I the only one who think CST should be trying to say less and less rather than more and more?

The growing pressure to make CST speak to any and all social issues is a disaster.

Posted by: Rob | Mar 4, 2011 12:52:21 PM

I don't understand how making an accusation that someone lacks integrity "as a whole" is a different kind of charge than saying someone writes opinions with a lack of integrity. If someone does act X with a lack of integrity, its still a moral judgment. Not to mention that all those who sign on with an opinion must also lack this integrity. Argue vigorously that the decision was wrong, or that he's a terrible Justice/writer; that's a reasonable position, and appropriate for this blog I would think. Your post, unfortunately, says much more.

Posted by: John | Mar 4, 2011 12:53:25 PM


I think the distinctions you make are good ones. What do you think of the references in the opinion to the distance of the picketers from the funeral or that the family did not see the content of the signs (i.e., they only saw the tops of the signs)? It seems to me that these are not constitutionally relevant facts. They may affect whether one has a legitimate claim under IIED law, but that it is a matter of state law. Should, in your view, those facts be relevant to whether the speech is constitutionally protected from tort liability?

Posted by: Mark | Mar 4, 2011 12:57:17 PM

Yes, Mark, I do think that the distances that are imposed by localities are constitutionally relevant facts. I do not believe that they are the only relevant facts, however. I also wonder, given other cases dealing with buffer zones, what the constitutionally acceptable footage might be (the abortion provider cases are interesting here, and some suggest that something much less than 1,000 feet is acceptable).

Posted by: Marc DeGirolami | Mar 4, 2011 1:11:57 PM

Thanks, Marc.

I’d like to try this one more time.

I’ve read many cases where the speaker has challenged the constitutionality of time, place and manner restrictions on speech “imposed” by localities, including distance restrictions. The argument, of course, is that the state imposed restriction is not consistent with the First Amendment. I understand how those challenges work.

Here, we have a plaintiff with a state law IIED claim. The plaintiff obtains a jury finding of liability under state law. The finding is not successfully challenged by the defendants on state law bases. Moreover, the defendant speakers are not challenging the 1,000 feet restriction as being unconstitutional.

How is the “distance” issue relevant to whether a finding of IIED liability under state law is constitutional? The elements of that law have been met. Could tort liability be constitutional if the demonstrators happened to locate themselves 500 feet instead of 1,000 feet from the funeral? If so, on what basis? Does it matter whether they choose that distance themselves or it was imposed by a state actor? I understand how proximity relates to IIED liability under state law. But I don’t understand how it relates to the constitutionality of tort liability?

In Sullivan and Falwell, the Court created heightened standards for defamation and IIED liability with respect to public figures and officials. The Court did something different in this case, and, at least to me, the basis of the decision is not altogether clear.

Sorry if I’m being obtuse.

Posted by: Mark | Mar 4, 2011 2:01:11 PM

Saying that someone "lacks integrity" and is "brazen" in the main post and then redefining "lacks integrity" to mean inconsistency or lack of thoroughness in the comments is itself lacking in integrity in one or both senses. You ought to update the post itself to point out what you really mean by a lack of integrity here. You might also want to explain how you mean "brazen" here, which is always a pejorative term that goes to someone's intent.

The other thing that has been left out of this discussion is the fact that opinion writers do not have sole control over the text of their opinions unless of course they are dissenting. We don't really know whether Roberts or anyone else on the Court had an appetite for addressing issues like the funeral picketing bans, etc. Attributing intent to omit to the author in that scenario seems wrongheaded.

Posted by: ER | Mar 4, 2011 2:16:58 PM

Not to mention the fact that even someone with integrity can sometimes be simply, mistaken.

Posted by: Nancy D. | Mar 4, 2011 2:54:18 PM

Sorry, Mark, I guess I'm not clear on the question (it's I that is obtuse). As you say, the Court did not pass on the question of what a reasonable buffer zone for funeral protests might look like, though it strongly suggested that such laws would be constitutional. The nice thing about a buffer zone is that it is content neutral -- stay away, all of you.

Assuming that a municipality adopted reasonable TPM restrictions on funeral protests, including a constitutional buffer zone (at whatever distance that is), part of your question seems to be whether violation of that buffer zone would have rendered an IIED claim of the kind in this case constitutionally permissible. I offer the tentative conclusion that under those circumstances, the answer should be yes.

The trouble is that the test for IIED claims is somehow inherently about the content of speech -- its outrageousness. Also, that test is much more like the test for pornography than the test for defamation (Justice White's concurrence in Falwell makes a lot of sense to me -- the truthfulness issue in Sullivan seems out of place here, to me, since "You're going to Hell" and "God hates you" has nothing to do with an assertion of fact and is, for the time being, unverifiable).

But perhaps I'm both wrong and mistaken about your question. Apologies in advance...

Posted by: Marc DeGirolami | Mar 4, 2011 3:28:51 PM

Steve, could you expand on the "thinks like an advocate" charge? Advocates (good ones, anyway) examine the issue from all sides, and think of all the arguments pro and con. Then, they make their best case(s) based on this thoughtfulness, and prepare their best defenses, as well. John Roberts was a tremendous advocate; I imagine he brings the same thoughtfulness, and thoroughness of examination to the issues he confronts in his current job. I don't see that as a problem. When you use "advocate," however, it's like you're charging him with "picking sides" and running with "his" side. Is that what you mean? Who is "his" side: the Phelps'? A broadly construed First Amendment? Just not sure what exactly you mean by "thinking like an advocate" and why that might be a problem.

Posted by: DFoley | Mar 4, 2011 5:32:36 PM

By my question, I did not mean to question whether the First Amendment, free speech rights, or the underlying issues in the case relate to Catholic social teaching. They certainly do. I think the question worth exploring is whether inconsistencies in opinions and the nuances of different opinions, without specific application of Catholic legal thought to inconsistencies and nuances, is an appropriate subject for this blog. There are plenty of other legal blogs where the discussion is appropriate.

To put it another way, I would like to read about what Catholic teaching has to say about the integrity of Robert's opinion, rather than just a criticism of the opinion.

Posted by: Chris D | Mar 5, 2011 3:38:55 PM

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