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Commentary: Privacy, in different settings


In back-to-back decisions, the Supreme Court has now told the nation that some claims to privacy — to avoid hurt or embarrassment — would not be allowed.  Perhaps few will weep over that loss on Tuesday for a giant corporation — AT&T Inc.  But, for what is sure to be a long time, many will weep, and perhaps express even stronger sentiments, about the Justices’ turning aside on Wednesday the claim of Albert Snyder that the Constitution should have assured him an hour of peaceful privacy to bury his Marine son, killed in Iraq.  The Court’s decision in Snyder v. Phelps (09-751) is exactly the kind of ruling that makes perhaps many people wonder if the Court knows what life is like for real people.  Indeed, one Justice expressed something of that same sentiment in anguished tones in dissent.

The Court will not now put out a defense of what it has decided, in either case.  The decisions made this week will do the speaking for the Court; no Justice will go on Twitter or Facebook to show appropriate sensitivity to those wounded by what it has done.   But there are explanations, and the Court no doubt wishes that they will not be seen as the kind of technical qualifiers that seek to evade fundamental moral questions.

The rejection of corporate privacy on Tuesday (Federal Communications Commission v. AT&T, 09-1279) was a declaration that simply followed what the Court deemed to be common sense, as well as supposedly clear guidance from Congress: a corporation may be “a person” in some legal settings, but it has never been thought of as having “personal privacy,” of the kind that human beings have because they have feelings.  A corporation is an artificial being, the Court said, and it cannot suffer hurt feelings.  This has nothing to do with the Constitution, the Justices said; they were weighing only the meaning of an explicit federal law.

If there is a more general lesson to be drawn from the AT&T decision, it is that claims of privacy have to be weighed in context: what is the harm done if one’s private affairs are exposed to public view, in what arena are private affairs at risk of being exposed, how does society judge harm in that setting, and does society insist on there being a remedy for that harm?   That very same calculus — context — is exactly what counted when the Court decided Albert Snyder’s case and a jury’s decision to punish picketers at his son’s funeral in Westminster, Md., five years ago.

Suppose, then, that instead of what actually happened in Westminster that afternoon, the following was the context in which the Westboro Baptist Church demonstrators had staged their anti-gay protest: moving it 1,000 feet from where they actually had held up their hurtful signs, they staged it on the lawn or front sidewalk of — or perhaps, even inside of –  St. John’s Catholic Church.  And suppose they had directly confronted the Snyder family even as they mourned, in what could easily have been taken to be assaults.  Their message, of course, would have been exactly the same: Corporal Matthew Snyder had died because God was punishing a sinful America, and the Westboro Baptists were glad for that.

If that had been what happened, Albert Snyder could have kept the $5 million verdict that the jury had awarded him, and, had that different case gone to the Supreme Court, the Westboro Baptists would have lost, almost surely by a unanimous vote.

What was the actual setting in which the Justices weighed Albert Snyder’s privacy claim?   The Court stressed, in several different ways, that it was ruling only on the actual facts of the protest in this particular case, and no other.  These were the facts that the two sides had developed, and the Court thus took them as established.  The two sides differed, of course, in how to interpret those facts legally.

Here is the way the Court spelled out the facts:  The demonstrators told police what they would do in advance, and obeyed every order the police gave them.  The protest was staged on a plot of public land next to a public street.  The Baptists were some 1,0o0 feet away from the church, separated from it by several buildings.  They displayed their signs, sang hymns, read from the Bible, kept their voices down, assaulted no one, and stayed away from the church and its grounds.  And, most importantly, the specific message they chose to convey was — at least as the Court would find it — a message about issues of public policy, including the morality of homosexuality and the sins of the Roman Catholic Church and the sins of America as a whole.

Albert Snyder, of course, had insisted all along that this was a bigotry-filled assault on him personally and directly — it was one group of private individuals assaulting him and his family as private individuals — so it did not make any difference that they kept their distance and engaged in no violence.  The Constitution’s guarantee of free speech, the Snyders contended, applies only to public issues, and does not apply at all in the exclusively private setting that the family believed to have existed in Westminster that day.   Justice Samuel A. Alito, Jr., in his lone dissent, agreed with the Snyders that that was exactly the context.

Reading the opinion of Chief Justice John G. Roberts, Jr., for all of the Justices but Alito, one could not find in it a callousness toward the Snyders’ personal feelings.  In a part of the opinion that the Chief Justice recited aloud in the courtroom, it said: “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible….Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and– as it did here– inflict great pain.”

But, Roberts’ recitation concluded, “On the facts before us, we cannot react to that pain by punishing the speaker.  As a nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

In emotional terms, the reaction that already is following the ruling might well be compared with the angry response that the Court stirred up when it ruled that burning the American flag, like the Westboro demonstrators’ actions, was free speech under the First Amendment, and when it ruled that a march by a band of Nazis through the streets of Skokie, Ill., where many Jews lived, was, like the Westboro protest, shielded by the First Amendment.

Just as the Chief Justice on Tuesday wrote that the Court trusted that AT&T “would not take personally” its loss of privacy in the setting of that case, the Court, silently perhaps, may now be trusting that America will not take it personally that the Snyder family will get neither legal victory nor money even as woefully inadequate compensation for the loss of privacy in its moment of deepest grief.

Recommended Citation: Lyle Denniston, Commentary: Privacy, in different settings, SCOTUSblog (Mar. 2, 2011, 7:41 PM),