Fall term: U.S. Supreme Court to consider two key First Amendment cases

The U.S. Supreme Court will consider this fall whether to extend the protection of the First Amendment to violent video games and protests at military funerals with the distinct possibility that the Court will extend protection as it did last term in striking down a federal law banning videos depicting violence against animals. -db

First Amendment Center
September 27, 2010
By Tony Mauro

WASHINGTON, D.C. — In the two biggest First Amendment cases before the Supreme Court in the fall term, one involving violent video games and the other a challenge to virulent protests at military funerals, the initial signs appear ominous for defenders of free expression.

In both cases, the controversial First Amendment practitioners won protection in the lower courts, and those who wanted to suppress the expression took the case to the Supreme Court. Because the Supreme Court usually — but not always — ends up reversing the ruling below, the fact that the Supreme Court agreed to review the cases means the First Amendment side in both cases could be in trouble.

So by the end of the term next June, could we see the Court vindicating California’s law banning the sale of violent video games to minors, spurring other states to exploit a new exception to the First Amendment? And could the Court also create a new zone of privacy for funerals that would leave protesting “intruders” subject to punishing lawsuits? Both scenarios are possible.

But a diminished First Amendment is not the only conceivable outcome. Recall that last term, United States v. Stevens was in the same posture as the cases this term. A person challenging the federal law that criminalized videos depicting violence against animals had won in the court below, and the United States was trying to resurrect the statute.

Instead of doing so, however, the Court issued a ringing endorsement of protecting unpopular speech, scolding the government for its argument in defense of the law as “startling and dangerous.” The opinion reminded everyone that “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” Instead of being a defeat for the First Amendment, it was a resounding victory.

Likewise it could be that the high court agreed to review Schwarzenegger v. Entertainment Merchants Association to remind California and other governments that it can’t just carve out ill-defined categories of unpopular speech to punish. As numerous briefs point out, violence is a recurring theme in great literature, from Greek plays to the Bible to “Macbeth,” as well as in every day’s newspaper. “Allowing broad discretion to regulate violence in speech and expression would have devastating consequences for the news media, who seek to faithfully report on the conditions in an obviously violent world,” states a brief by the Reporters Committee for Freedom of the Press. The Schwarzenegger case will be argued Nov. 2.

There’s a chance Snyder v. Phelps may also turn out favorably for the First Amendment. In that case, Albert Snyder, the father of a Marine killed in Iraq, sued Fred Phelps Sr., the pastor of the Westboro Baptist Church, for intentional infliction of emotional distress. As he has done for years, Phelps and his followers picketed the funeral of Matthew Snyder, displaying anti-gay messages that ascribe military deaths to God punishing America for embracing homosexuality.

The “infliction of emotional distress” tort is the same that was at issue in Hustler v. Falwell in 1988, when the Court ruled that such a lawsuit cannot be used to punish protected speech. The Court could reiterate that point and again stress that obnoxious speech cannot be punished just because it upsets its audience.

But one possible difference is that the Hustler case involved a suit brought by famed minister Jerry Falwell, and he was a public figure whose rights to sue the news media are limited by First Amendment precedent. In the current case, on the other hand, Snyder argues that he was “simply a private citizen attempting to attend his son’s funeral without disruption.” Margie Phelps, who will be representing her father, Fred Phelps, before the Court, counters that Snyder “made himself a limited purpose public figure when he spoke with the media extensively immediately after his son’s death and when he sought out the media for more coverage immediately after his son’s funeral.”

If the high court agrees that Snyder was a private figure, it could establish a different rule that would allow for such lawsuits. The case also raises issues of “intrusion on seclusion” and whether funerals should be viewed as specials events deserving privacy. Snyder will be argued Oct. 6, the third day of the new term.

The Schwarzenegger and Snyder cases are just two of the First Amendment disputes on the Court’s docket for the fall. In addition, the Court has agreed to consider a Freedom of Information Act case and a privacy case, both of which may affect information-gathering by the government.

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