2.Notice that the majority emphasizes that Phelps' speech, no matter how crude and provocative, is at the core of the First Amendment because it is speech about matters of public concern that takes place in a traditional public forum. Since the tort liability turns "on the content and viewpoint of the message conveyed", it triggers the compelling interest test.
3.Once again, notice how the law requires the unwilling listener or viewer to "avoid further bombardment of [his] sensibilities simply by averting [his] eyes." Compare this approach to the Snyders with the, perhaps, overly protective concern of the Endorsement Test for passersby offended by a Nativity display in a public park.
Money quotation from CJ Robert's majority opinion:
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment . Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment , it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
4. Alito dissents eloquently and says that our "profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." On the other hand, always keep in mind that the Free Speech Clause is most necessary when the speech is most unpopular. We would all like to stop the Nazis from marching in Skokie, Illinois (a city with a large Jewish population, many of whom survived the Holocaust), but the First Amendment protects even the Nazis and their right to express even hateful messages.
5. Even more clearly, the Court recently, in Matal v. Tam (2017), the trademarks case involving the Asian-American dance-rock band that calls itself the “Slants,” the Court unanimously held that hate speech and offensive speech are protected by the Free Speech Clause.
But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment.Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting).
6. Offensive speech is
at the core, at the heart, of the First Amendment. You do not need First
Amendment protection to say popular things.
7. If you followed the Prop 8 controversy in California from a few years ago, you probably heard of the angry protests that took place outside churches that were supporting Prop 8. Picketing with signs proclaiming "HOMOPHOBE" and "haters" and worst. (See link). This kind of "uninhibited, robust, and wide-open" expression, even though disgusting, is protected by the First Amendment because we believe in free and open debate on issues of public concern.
8. Imagine a BLM protest outside a church conducting a funeral for a police officer killed in the line of duty. Picket signs condemned "Racist Pigs" and "Uniformed Murderers." Assume that the police officer whose funeral was taking place had never even been accused of racist misconduct. Should the speech of the picketers be protected from tort liability?
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