Snyder v. Phelps

Cite as: 562 U. S. ____ (2011)
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES

_________________
No. 09–751
_________________
ALBERT SNYDER, PETITIONER v. FRED W.  PHELPS, S R., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[March 2, 2011]

JUSTICE BREYER, concurring.

I agree with the Court and join its opinion. That opin-ion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting.  Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern.  See Frisby v. Schultz, 487 U. S. 474 (1988). Moreover, suppose 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. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (“fighting words”).

The dissent recognizes that the means used here consist

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.