"vicious verbal assault"

There's a lot of interest in today's decision in Snyder v. Phelps, the Westboro Baptist Church case.  But I just want to say this:  The Court was right to reject, in its 8-1 decision, Justice Alito's effort to treat a "vicious verbal assault" leading to emotional distress as just like a physical assault.  Alito's argument, in effect, was that, even though Westboro's message was otherwise protected by the First Amendment, it did not have a constitutional right to convey that speech by way of an intentional infliction of emotional distress any more than it would have the right to convey its speech by, say, hitting bystanders over their heads with its picket signs.

But emotions have the odd and distinct character that they are both intensely subjective and in many ways socially constructed.  Westboro's speech is (objectively) vile, but any of us could reasonably react to it with either profound hurt and distress, or self-empowering righteous indignation, or bemused boredom.  And there's a profound feedback loop between what we feel, or think we feel, and how law and society respond to those feelings.

I've been thinking about this problem of emotional responses a lot, particularly in connection with my discomfort with Justice O'Connor's famous "endorsement test."  The constitutional experiment with separation of church and state should be understood not as a salve for hurt feelings but as expression of certain important, and to a large extent distinctly American, political and theological commitments.  We also need to appreciate that, to the extent that hurt feelings do enter the picture, they often arise out of the specifically American church-state dispensation, and not the other way around.  Many religiously serious English Jews, for example, don't feel "marginalized" by the established status of the Church of England; to the contrary, they see the established Church as an important institutional voice for all religions. If American Jews feel differently, it's not because they're more emotionally sensitive, but because they're the products of a different history and constitutional culture.

Back to the Snyder case, though:  The Court was also right to leave to another day the question of whether statutory buffer zones around funerals would be constitutional.  I think that, within reason, they are.  Funerals are generally private events that, for special reasons, often need to take place in public spaces.  To create a sort of temporary zone of quasi-private quasi-property around such events strikes me as permissible.  The issue here is not protection from emotional distress, but the right to conduct a set of important ritual acts (or their equivalent) without interference or trespass.

(Also posted on lawreligionethics.)

Comments

[Jimbino]

Funerals are private events inflicted on the public by religious and superstitious people.

The same reasoning would hold for a moment of silence, pledge of allegiance, singing of the national anthem, circumcision, communion, baptism, abortion, and euthanizing of 4000 stray cats. If you don't want to see the demonstration, have your religious ceremony in private.

There are lots of us out here who do not want the religion of others inflicted upon us and we will do our best to destroy the Golden Calves of the superstitious.