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In declining to consider the “epic” posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps. The Court may have sought to make this an easy case by considering only the contents of the church’s picketing placards. For the Court, the placards highlighted such issues of public import as “the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy.” On grounds that we might charitably call dubious, the Court chose not to “hear” those parts of the church’s speech that most clearly and most viciously attacked the Snyders—speech, that is, on matters of purely private concern. In deciding whether speech is on a matter of public or private concern, the Court is required “to examine the ‘content, form, and context’ of that speech, ‘as revealed by the whole record.’” Having determined the “content, form, and context” of Westboro’s speech without reference to half of the record, Justice Roberts was able to describe the church’s speech as “fairly characterized as constituting speech on a matter of public concern”—speech, that is, worthy of special protection under the First Amendment.

What the Court apparently did not want to do was to tackle the question left unaddressed in Hustler v. Falwell: whether speech on a matter of public concern directed at a private figure may be actionable. Part public, part private, Westboro’s speech placed before the Court the difficult question of what protection to afford speakers who make a private party the unwilling instrument of their public message. The Court limited its holding to the facts of the case—the facts absent the epic; and on these facts the Court was content to characterize the church’s speech, fairly or not, as a public concern, thus avoiding the hard work of constitutionally culling wheat from chaff. The Court’s “central thrust” language effectively accommodates, for now, the concerns of those who, like Justice Breyer, worry that the Court’s conflation of public and private speech “unreasonably limits liability for intentional infliction of emotional distress.” Had the epic been before the Court, this accommodation may not have been possible.

Snyder v. Phelps was not an easy case. When personal invective is delivered in the milieu of public discourse, it is no simple task to balance competing constitutional and common-law interests. No doubt, there is a point where speech purportedly on a matter of public concern is so personal in content and form that it loses public import, and if the personal attacks in Westboro’s epic, which addressed the Snyder family directly, do not reach this point, it is hard to imagine what would. But like many important legal boundary lines, this one is more often than not going to be difficult to draw.

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2011 Cardozo L. Rev. (de novo) 35-42