Friday, March 4, 2011
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.