Snyder v. Phelps (Dissenting opinion)

17 Oct

9

Cite as: 562 U. S. ____ (2011)
ALITO, J., dissenting

He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”  Id., at 3791.

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military.  Both Matthew and petitioner were private figures,16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not. JUSTICE BREYER provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:

“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern.  The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected.” Ante, at 1 (concurring opinion).

This captures what respondents did in this case.  Indeed, this is the strategy that they have routinely employed—and that they will now continue to employ— inflicting severe and lasting emotional injury on an ever growing list of innocent victims.

IV

The Court concludes that respondents’ speech was protected by the First Amendment for essentially three
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16 See 533 F. Supp. 2d 567, 577 (Md. 2008).

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