UPDATE: Prompted by a comment, and having now perused the full text of the decision, I’ve changed my mind on this case somewhat. WBC was protected because it was well back from the funeral (1,000 feet), out of sight of the church, and “there was no shouting, profanity or violence” – and its attack was on public matters (although at least some material published online targeted the Snyders directly). Had it been the Snyder residence, for example, the Court would probably have found as in Frisby. Or if it were preventing people from attending (eg outside an abortion clinic) as in Madsen. The “captive audience doctrine” did not apply because the facts were that “Snyder could see no more than the tops of the signs when driving to the funeral”.
Given those factors, the decision seems consistent and not unreasonable.
That said, Alito’s dissent is also worth reading.
To begin, I don’t agree with the US Supreme Court that “free speech” protections should include a “right” to harass and intimidate. In the real world there should be – and, for people like the Supreme Court justices, are – obvious limits. I suspect that if I were to stand on a public street next to a Supreme Court judge’s house and loudly broadcast abuse at him and his family over the fence at three in the morning, the police would arrive and promptly take me away. Even though I was technically on “public property”.
Likewise, whilst the Westboro Baptist Church nutcases should be entitled to argue what they like in public, harassment of private citizens crosses the line from where courts should place their victims’ privacy rights above their free speech rights.
I think the decision in Snyder v Phelps is a terrible precedent, and entirely inconsistent with the rights of ordinary citizens (ie, citizens who are not Supreme Court justices and granted special protection by the state) to not be bullied by aggressive, hysterical thugs.
One interesting effect of this decision, as Fred Clark points out, is that it is a bit of an own-goal for the homophobes. One of their biggest arguments against marriage equality is that it is somehow going to take away their rights to free speech – their “right” to defame and abuse homosexual people from the pulpit. They conjure terrifying scenarios of priests sued and prosecuted for simply teaching their religion’s most deeply-held beliefs – that gay people should be hounded by their flock.
But this decision affirms that such a fear is utterly unfounded. The Supreme Court has defended the bigots’ “right” to abuse not just gay people, and not just from their pulpits – but at their funerals. At the funerals of ordinary citizens who are just insufficiently anti-gay for the fundamentalists’ liking.
Like Fred, I suspect that won’t actually stop the nutters making the argument: they’ve long since resolved to say whatever they think will build support, regardless of whether it is true or plausible or in any way rational. They have no shame. But it’s worth everyone else realising how hollow the claim is.