The Supreme Court’s decision in Snyder v. Phelps fleshed out at 8 to 1, holding that Fred Phelps’ First Amendment rights precluded Albert Snyder’s action against him for the conduct of the Westboro Baptist Church at the funeral of his son, Matthew.  Hopefully, my own constitutional bona fides will enable me to write what follows without being hung, in effigy or otherwise.

Many, in fact everyone but Sarah Palin, praised this decision as upholding the vitality of free speech at its extreme edge.  Not surprisingly, no one does it better, or in a more unique voice, than my pal Marc Jon Randazza, who describes the case thus:

To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).

As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.

There is no one, absolutely no one, who holds the first amendment dearer than Randazza.  And yet even Marco can’t describe this case without noting that Phelps, and his lowlives at the Westboro Baptist Church, are the sort of scum worthy of extreme measures to be sure it doesn’t touch the bottoms of our shoes.

To note that rights are protected at their most extreme is obvious, at least to lawyers.  It’s meaningless to protect the rights of those we like and embrace.  The test of our adherence to the Constitution is whether we afford those rights to those we despise.  And if ever there was a group we despise, it goes under the name Westboro Baptist Church, with Fred Phelps leading the way.

If there was a merciful/vengeful God, he would run Phelps down with a Ford F-150.  Then he would throw it in reverse and do it again. Phelps is giving the Big Guy a bad name.  But the magic space zombie jew (Randazza’s words) has yet to do so, commending Phelps to the Supremes for judgment.

In my mind’s eye, I see the post oral argument conference, where the justices take their preliminary vote.  Not a voice is raised against Phelp’s First Amendment right, but C.J. Roberts sees the slight twitch, just below Sam Alito’s left eye at the crease where his cheek bone meets the fold of skin that wasn’t there in his youth.  As they walk from the room, they chat.

C.J. Roberts:  You know, Sam, that we’ve got to stand behind the First Amendment on this one.

A.J. Alito:  Of course.  What else can we do?  But this mutt…

C.J. Roberts:  Everybody feels that way.  Wild Bill Douglas would have felt that way.

A.J. Alito:  And yet a branch of government, a whole branch, is going to empower the lowest nutjobs in America.

C.J. Roberts:  Well, Sam, an 8 to 1 decision sends as strong a message as a 9-0 decision.  If someone was to break ranks, kinda take one for the team by ripping this wackjob a new one, well…

A.J. Alito: You wouldn’t be miffed if someone goes off the reservation, J-man? Thanks. I owe you one.

And Associate Justice Samuel Alito dissents.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

The First Amendment is not absolute.  Not every word, thought, expression is protected. Most of the time, the limits are imposed to protect others from imminent, actual, physical harm.  The limits are not used to shut down speech because of the offensiveness of its content on a subject of public interest or concern.  But then, Albert Snyder was, as Justice Alito notes, not a subject of public interest or concern.  Albert Snyder was a father who gave a son for his country, and only seeks to mourn his loss.

Fred Phelps was not merely a nutjob, but a nutjob with an acute sense of publicity. The picketing of Matthew Snyder’s funeral, even though 1000 feet away and on public ground, would get his name in the papers and his face on the telly.  Fred Phelps desired prominence.  Whether because of a belief in his warped message, or just because he’s warped, I can’t say, but Albert Snyder’s misery was Phelps happiness.

Was the fact that Albert Snyder was a private figure, and the funeral of his son a private function, sufficient to fashion a conceptual ledge that would the stop the slide down the slippery slope?  No.  It was a darn good try, but deeply flawed.  If outrageous and offensive speech was limited to those people, those events, that deserved it (as far as some judge or  twitterer was concerned), the freedom to speak would be fundamentally undermined.  No question about it.

But is there anyone, any lawyer, who doesn’t wish that there was some test that would provide an iron-clad rationale that would shut Fred Phelps’ mouth, wipe the smirk off his face and shove his insanity down his throat?  Let’s be honest about it: We all agree that the Supreme Court made the right decision, but we all wish that this one time, just this once, we could rev up the old Ford F-150, close our eyes, and hit the gas.

Sam Alito’s dissent did not harm to the First Amendment.  At 8 to 1, no one doubts that the Court, even with all the negging that came out of its Citizens United decision, did what it had to do in sufficiently clear terms that the message cannot be denied.  The First Amendment protects the free speech of scum.  As it should.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn’t walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.