It’s tempting to characterize the Supreme Court’s decision in Snyder v. Phelps — in which the high court upheld First Amendment protection for the Westboro jerks picketing at a US Marine’s funeral — as a straightforward free speech case in which the court declined to recognize a jackass exception to the First Amendment.
But on reading the opinion, I think that characterization is wrong. The opinion makes the decision into a much more close-run thing, hinging on whether the Westboro jerks are expressing opinions on matters of public concern or merely private concern. They find that the speech is on matters of public concern, and therefore it is protected. (Alito, to the extent to which I understand his dissenting opinion, seems to find that the speech is on matters of private concern, and so is unprotected.)
Where does this public/private concern test arise? The opinion cites Dun & Bradstreet v. Greenmoss Builders for the distinction, but Dun & Bradstreet seems to say something quite different. It says that in matters of private concern there is less protection for false statements; a plaintiff need not show “actual malice” in order to recover damages. But as referenced in Snyder, this morphs into the idea that opinion may be unprotected if it relates to matters of private concern.
I’d like to know where this doctrine was first extended to opinion. Was it just invented in Snyder v. Phelps, or was it invented in some case between Dun & Bradstreet (1985) and today?
Frankly, I find the idea very troubling. Apparently, If I go across the street and call my neighbor a jerk, that is a private concern so it is not protected by the First Amendment. There’s no law against that today (that I know of), but if the government wanted to pass such a law, this doctrine would allow it. This is not what the freedom of speech ought to mean.
POSTSCRIPT: As I said, I don’t really understand Alito’s dissenting opinion, but he seems to be working from the same distinction between public and private concerns as the majority opinion. Breyer’s concurring opinion is even more troubling: he says that the public-concern determination should not be the end of the analysis. Even speech related to public concerns could be restricted without violating the First Amendment, he says.
In this case, Breyer finds with the majority because of one of those horrible, ill-defined balancing tests he seems to like so much. Granted, there are some rare cases in which the government must restrict speech (e.g., the proverbial crowded theater) but nothing remotely like that is in play here. The fact that Breyer finds it necessary to mention the balancing test suggests that he thinks the balancing point is much closer than it should be.
UPDATE (4/29): Glenn Reynolds explained to me that a distinction in torts between public and private concern goes back to English common law. I still don’t quite understand it, but we weren’t speaking in a setting conducive to a more detailed discussion. But it definitely seems safe to say this is not a new doctrine.