Ordinary people have a right to be deeply uneasy with the outcome in Snyder v. Phelps, for it is almost obscene that the members of the Westboro Baptist Church think that their path to salvation lies in ruining the lives of others in the moment of their greatest grief. And I am grateful to Justice Alito for writing a dissent so that the public understands that there are two sides to this question.
That said, I think that the majority of the court is correct, but on narrower grounds than might be commonly supposed. In my view, it would be a mistake to say that aggrieved parties could never sue protesters for the intentional infliction of emotional distress. That tort has long been recognized in every state of the union. It seems odd therefore to say that conduct that is widely recognized as unlawful should somehow be necessarily protected under the banner of freedom of speech.
(photo credit: Clarissa)