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The US Supreme Court decided last month in the case of Snyder v. Phelps et al, which involved the Westboro Baptist Church and its habit, offensive to nearly all people, of picketing military funerals. The court's decision went in favor of the church and its right to carry on. When we learned that the court had split eight to one, and that the lone dissenter in the case was not one of the court's "liberal" justices but was in fact Justice Samuel Alito, we got all over the text of that decision like a cheap suit.

We in the Lounge came out a long time ago as devoted fans of the Supreme Court. For lovers of language, there is plenty here to love: following the work of the Supreme Court provides you with the opportunity to listen to and read the words of extremely well-educated and intelligent people, at the top of their game, using language that is intended to move hearts and minds. It's a great place to see rhetoric in action – and we're talking here about the southwest node of that wordmap, "using language effectively to persuade." In this particular case, we were especially interested to learn why Justice Alito, a Catholic who normally votes with the conservative block of the court, would go out on a limb, abandoning alliance with his fellow conservatives and coreligionists.

To look at the arguments first in broad strokes, we used the VT's VocabGrabber to make word clouds of two of the opinions published by the court (we did not graph a solo opinion concurring with the majority, written by Justice Breyer).


Majority opinion by Chief Justice John Roberts	Dissenting opinion by Associate Justice Samuel Alito

The clouds are arranged by frequency, and are cut off at about the level of three occurrences; that is, words that appear fewer than three times in either of the opinions are not shown in the lists above. There is much overlap in the main terms that the two justices use to frame their arguments, and some interest lies in the subtle differences. A few observations on the basis of these frequencies:

The majority opinion uses the phrase "public concern" nearly twice as often as the dissenting opinion
The dissenting opinion mentions "Catholic" nine times; the majority opinion, only twice
The dissenting opinion uses the word attack 14 times; the majority opinion uses it three times
The word assault occurs nine times in the dissenting opinion; it does not occur in the majority opinion.

What we found most interesting in reading the opinions is how very persuasive they both are. If you read one and not the other (though we strongly recommend that you read both) you are likely to walk away reasonably convinced of the position put forward. Here are a few extracts:

from the Majority Opinion

from the Dissenting Opinion

"[T]he church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. . . . The protest was not unruly; there was no shouting, profanity, or violence. . . . [A]ny distress occasioned by Westboro's picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself."

"What Westboro said, in the whole context of how and where it
chose to say it, is entitled to 'special protection' under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous."

"Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral."

"On the facts before us, we cannot react to [the petitioner's] pain by punishing the speaker."

"I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech."

"When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery."

"[I]t 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, and this attack was not speech on a matter of public concern."

"I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected."

"In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner."

In the majority opinion, the argument that wins the day hinges on two points: members of the Westboro Baptist Church were expressing their opinions on matters of public concern, and the First Amendment protects their right to do this. The dissenting opinion concedes that this right exists, but insists that the actions of the church members constituted a personal attack on the petitioner and his family, with intention to inflict emotional distress, and that legal redress for this should be available to the family. Boiled down further, the difficult question that arises is about what constitutes public and private, and to what extent language influences which is which. The core definitions of the two words helpfully set them at opposite poles

private – confined to particular persons or groups
public – not private; open to or concerning people as a whole

The definitions do not, however, provide much guidance for determining what is ultimately a judgment call: that is, what is actually confined to particular persons, and what concerns everyone. In this matter, the two very different interpretations written by the court seem to arise out of perceptions: a shared one, presumably, in the majority opinion, and a private one – that is, one not widely shared – in Justice Alito's opinion. You cannot read his opinion without perceiving how acutely he felt the injury to the bereft family, and how directly this influences his legal opinion.

A public opinion poll conducted just after the decision, in the media market in which Matthew Snyder's funeral took place, found the public largely in sympathy with Justice Alito's view: 80% of respondents were opposed to the majority opinion. But the public are presumably not interpreting the case with the benefit of an understanding of constitutional law. Justice Alito's opinion is well documented with precedents for his interpretation, but no more than the majority opinion is. So perhaps the question is: are private opinions, no matter how thoroughly documented with legal precedents, a basis for deciding what constitutes public and private discourse?

You can also listen to oral argument on this case, from October 2010, or download a transcript of the argument on this page:

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=09-751

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Orin Hargraves is an independent lexicographer and contributor to numerous dictionaries published in the US, the UK, and Europe. He is also the author of Mighty Fine Words and Smashing Expressions (Oxford), the definitive guide to British and American differences, and Slang Rules! (Merriam-Webster), a practical guide for English learners. In addition to writing the Language Lounge column, Orin also writes for the Macmillan Dictionary Blog. Click here to visit his website. Click here to read more articles by Orin Hargraves.

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Comments from our users:

I find it discerning that the same government that states (via Hilary Clinton) "free speech has it's limits” can be so callous as to not protect the privacy of an individual and its' family from the intentional infliction of emotional distress.

The US Govt, with all it's horses and all its men, are trying to limit Wikileaks’ expression due to the infliction of emotional distress. They are not commenting, but facilitating free speech - with no intent to harm. The harm is done by the classic media which amplifies his actions.

The court doesn't see the contradiction in this. FSP proud US Citizen Thank you Sam.

A fine article. Perhaps a subtitle would be in order:
The Rule of law versus the rule of 'heart'.

When I have watched the news regarding the vile so-called "church" and its members, it is very, very clear to me that they are TARGETING those going through bereavement. They don't park themselves outside grocery stores. They don't parade in front of libraries. They don't go to local astronomy observatories and hold placards for the viewing public. No - they SPECIFICALLY go to the funerals of servicemen and women. It takes a determined effort at studied stupidity (sorry, there's really no other word for it) to ignore these facts and say that an attack is not going on. Now - it may be that even though there is an attack going on, it is nevertheless Constitutionally protected speech. But that's apparently not the argument made by the majority. They are saying that they can't see an "attack" going on. It's kind of like any other kind of harassment. If there's a bully and he knows that his victim is terrified of him, and he stands on a street corner every day between the school and the victim's home, harassment is going on and it takes a special kind of stupidity to say it's not. I'm a big believer in First Amendment rights and again - maybe the Westboro Church (and the bully) are protected by the Constitution, but at least let's call it what it is: an attack.

I find the actions of Westboro terribly offensive, yet I applaud the court for upholding our right to free speech. Is is possible to bifurcate this right without reliance on moral judgements? And if not, who is charged with carrying the torch of the "correct" morals?

In an evolving democracy, do morals not change over time? In speaking the words that the majority do not want to hear, the minority has the opportunity to be heard. Once the words have been spoken, and then spoken again and again, our society has the opportunity to either affirm or negate those words. We have heard the words of pilgrims, African Americans, the gay community, Neo-Nazis,and now the Westboro church and its community. In a democracy, the righteous prevail.

I completely agree with Justice Alito and Bal S. The idiocy of pinning the majority decision on whether an ATTACK has occurred is ridiculous. I know porn when I see it; I know an attack when I see it. Harassment is illegal unless a one is a 'public figure.'
Deceased members of the military do not fall into that category. When did SCOTOS become so stupid?

I was very confused about this (hadn't been following the news, so had no opinion)until I read the transcript of the plaintiff's oral argument to the court. I am still undecided on the decision, but it seems to me that a person or group stating in public, as the protestors signs did, that a certain person is going to hell, or that God hates him, is hubris in the extreme. I'm now inclined to lean toward the considering the protest as an infringement on the Snyder family's right to practice a solemn part of their religion undisturbed. Can it be that this is not a case of freedom of speech, but of freedom of religion?

As a doctor of jurisprudence, I am incredulous that your judges cannot handle the inter-relationship of your Constitution, on the on hand, and human decency on the other. If your Constitution, which has long been a subject of admiration for me, mandates the brutal invasion of private family grief, I am grossly dissappointed. I do believe however, that when the judiciary runs away with its home grown philosophies, we are in danger of uprooting the values that have long been the raison d'etre of western society. Under this new intelectualism, religion is one of the social value systems that will become the vehicle for strange new philosophies, rather than the mainstream of love, compassion and righteousness. Which of these philosopies best describes the mindset of the 9/11 terrorists?
There are lessons in human history that are yet to be learned and understood in some sectors of the modern judiciary.
I intend no offence. In a world that is slowly going mad, we non American westerners look to our USA cousins, with desperation, for solidarity in the expression of true human values. When our political minorities run off with fractious new dogma, we tend to dismiss them as the hangover of left and right extremism. Time for us all to wake up and take notice.

The issue is not the right to say hateful things. The issue is saying them in a context that will inflict extreme emotional distress on private citizens engaged in one of the most personally sensitive activities imaginable. Allow the protest down the street, on the other side of town, the day before or the day after. But not in the faces of the family!

There are, indeed, limits on free speech. You cannot yell “fire” in a crowded theatre, as so doing can clearly cause harm. So, too, with these protests at a funeral. The intent, and the result, is to cause extreme emotional harm. Not only is that tortious, in my opinion it ought to be a crime.

@Bal S.

You hit the nail on the head.

You would think an enlightened, educated society - served by the Supreme Court would be able to preserve the First Amendment and still protect US citizens (especially those working on behalf of the US and its citizen at the COMMAND of the governement), doing their duty and losing their lives in the process.

Shame on the protesters. Picket Washington not those who serve...

It takes but one second to realize this is "bullying" of the very worse kind!
Just despicable! Those church members lack human decency, and the Supreme Court lacked good judgement...

In order to answer the question: “are private opinions, no matter how thoroughly documented with legal precedents, a basis for deciding what constitutes public and private discourse”, we need to understand some basics about the US Constitution.

While the US Constitution guarantees certain rights, nowhere in that document will you find that it explicitly imposes responsibilities on individuals in order to obtain those rights. The framers of that document (men who believed in God and actively and openly practiced their religious beliefs) believed that these rights (the original 9) already existed and were imposing restrictions on the government not to infringe on the rights of individuals. It does not “grant” people those rights.

This is an important distinction in this debate because it is the job of the Supreme Court justices to interpret constitutional law. Common sense and civil decency has no place in the Supreme Court justices’ debate and decision calculus. The only question before the court dealt with whether or not the plaintiff’s rights were denied. They clearly were not. Note: I am a proud American, former Army Viet Nam combat vet and an information systems scientist in a large aerospace defense firm. I detest the actions of the members of the Westboro Baptist Church as much as anyone.

So why was Justice Alito the outlier? Why did he represent the majority of public opinion yet not the majority legal opinion? I believe it comes down to an issue of pragmatic competence, which is defined as “The ability to use language in a contextually appropriate fashion.”

What I believe is missing in the interpretation of law is a more balanced emphasis on pragmatics (specifically pragmatic competence) and less on debates of syntax and semantics with regard to what constitutes public and private. Pragmatics is defined as: "A branch of linguistics concerned with the use of language in social contexts and the ways in which people produce and comprehend meanings through language”. Pragmatic competence is used by intellectuals and academics: “extremely well-educated and intelligent people, at the top of their game,” to selectively “move hearts and minds” to their way of thinking. They can selectively focus the debate, not on the pragmatic aspects of social decency, common sense and compassion for those who lost a loved one but on the semantics, thereby removing the contextually appropriate interpretation of meaning. This is a skill that is highly developed in politicians (most of whom are lawyers). They can talk you out of anything. What is the meaing of "is".

Justice Alito clearly applied a balance of pragmatics with the more fundamental syntax and semantics when interpreting the language of the law and arrived at the morally correct conclusion. Bravo to Justice Alito.
Definitions from: http://grammar.about.com/od/pq/g/pragmaticsterm.htm

I understand the courts decision. But whatever happened to respect? Religious or not, the moral standards in this country are becoming increasingly non-existent. Showing even the smallest bit of respect for your peers has become all too apparent in politics. We can't come together if we drive the wedge even deeper. Sorry, this may not be related to free speech or the argument at hand, but it turns my stomach to read about these so called "Christians" or anyone who thinks that it's their way or the highway. Where's the "Love thy neighbor?" We need to get along.

What a great article! Kudos to your clear presentation of the issues.

I always appreciated Robert Jackson's observation: "The price of freedom of religion, or of speech, or of the press, is that we must put up with a good deal of rubbish." But I think Bal S. was right. This is a directed attack on private individuals.

Alioto seemed obviously correct when he wrote, "In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner."

I take some comfort from the fact that the behavior of the members of this Westboro Church is much more effective in generating antipathy towards their brand of militant fundamentalism than it is in encouraging opposition to homosexuality.

The real difficulty here, and the reason I believe we are all so against the majority position, lies in the nature of the Bill of Rights and lex rex in general. The Bill of Rights protects citizens from 'government' interference with their rights; such as a court order that they can't protest in an otherwise public-access area. The Rule of Law mainly acts to hold everyone accountable to the law, whether a government enforcer or a private citizen.

The clash in this case comes because we all feel that the Right of Free Speech should not be available when it directly and unjustifiably has some harm to another. However, the Bill of Rights and other constitutional principles limit government action, and so has the odd consequence in this case of limiting the supreme court, who might like to protect the people, but are stopped because they would be acting as a government agency and would themselves be violating Free Speech protections. And since private individuals' tort claims are not of a comparable constitutional nature, such claims cannot rebutt the constitutional implications.

But when the Rights of individuals seem to be for everyone do anything to anyone else, it really hurts our hearts, I think. Hard case.

Prior to the decision on the court case, I just happened to have watched an hour-long interview on this "church."

One of the things I came away thinking about was that if I spanked my grandson's hand when he was a toddler as a way of protecting him from a potential danger (fire, reaching for something that could cause an entire rack to fall on him, etc), I could get arrested and hauled into court on abuse charges.

Yet this "family" is allowed to indoctrinate their children in the most vicious kind of hatred toward their fellow citizens with not an objection to be heard.

I am in awe.

To all commenters, freedom is protected on the fringes not in the mainstream. The mainstream wants the consensus to rule. Today the KKKs, Westboros and Porn industry provides the first line of defense for free speech.

One only has to think back a few years to remember when unions, NAACP and gays were on the fringes. Each were reviled by the mainstream.

The irritants of our society provide me a sense of peace.

Mike

The supreme court did not decide the case on the basis of morality, religion, or public opinion. That is not its purpose. Its purpose is to determine whether or not a situation follows the constitution or not. They did that and although their decision is morally repugnant to 80% of the people polled, it was constitutionally and socially correct. I say socially correct because the other road would lead to the situation in so many countries, especially eastern nations, where the government can persecute its citizens for disagreeing with the contemporary (and usually temporary) political or moral or religious viewpoint. Our nation fought hard for the right to safely present opinions that might be repugnant to 80% of the public. Let's not allow the erosion of that freedom just because a small, nasty, I believe evil group has pushed our buttons. As for the poll, remember what Anatole France said. "If fifty million people say a foolish thing, it is still a foolish thing." Polls are a miserable way to make decisions.

Tom, I think your points, though well-made, fly in the face of the main objection that the government should be able to protect citizens from harm. Those poor people mourning over the death of their beloved soldier deserve protection from the pain and suffering that these hate-filled Baptists are intentionally inflicting. "My right to swing my arm ends at your nose." That should apply to psychological suffering, as well. The issue would be different if these people were carrying their signs outside a military base or, as suggested above, outside a supermarket.

These threads are wonderful and insightful, but sometimes we tend to talk past each other.

...just my opinion, of course.

Fortunately, I am moved both by the majority and dissenting opinions rendered by the Supreme Court in the Westboro Church case, as well as by Orin Hargraves' well-written article. Unfortunately, however, time limits my ability to comment to the extent I would prefer. What puzzles me (and admittedly, I am easily puzzled) is the purported tension that the majority of people perceive between what is deemed to be a personal attack on individuals using speech as a vehicle to cause pain and the constitutional right of free speech in this case. A number of causes of action exists in the United States legal system to award damages to those who are directly and personally attacked and against those who do the attacking. In some cases, monetary damages may be limited, yet equity (legal) provides redress. To attempt to carve out a broad exception to the US Constitution in an effort to protect as yet unknown individuals who may claim to have been "personally attacked" by speech expressed by people lawfully standing on public property holding repugnant signs seems to me to be like using a sledge hammer to drive a thumbtack. This action bears little, if any, semblance to crying fire in a crowded theatre. If Justice Alito’s reasoning were to prevail, would it not open a whole new concept in defining limitations to free speech?

What it all boils down to is, "When will they shut you up," and the majority was right for their decision. Oh, if only Justice Alito's dissent might hold water but alas, the despicable actions of the Westboros need be tolerated. Even the Chief Justice, off the banc, had nothing pleasant to say about them.
In passing, i must comment that the majority are in a bloc, even though there may be a few block heads on the panel.

The article, together with the ensuing discussion, really has been a great experience for me. Thanks to everyone!

Ditto Don H. This article was an "experience," not just a good, intelligent read. I sure wish I could "like" it to Facebook, to share out with my worldwide friends. Or maybe I can and I'm just missing something?

@ Tom: you may share the article on FB using various tools. I use the Google toolbar. With it you can share any web page in a variety of ways including a posting on FB...and what a good idea! I'm sharing it right now!

Great article, and terrific discussion. I too have more empathy with Alita's view, but I do understand what the Court was about.

If Alita's view were to prevail, would that open the Court to a determination or evaluation of bullying? Has that even been mentioned? It does seem like it. This is a small group of people, mainly, I think, one family, that has a particular view. And it is their view that was deemed protectable. However, if it had been regarded as bullying, which it does seem to be, maybe that would have changed.

I think the decisions depend on how the justices preceive, not just the written depositions, but the oral arguments.

I wonder how they insulate themselves from public opinion. I wonder about that because on a local level I know how difficult it is, knowing one of our judges who has faced some very difficult discernments. I've often wondered at her ability to maintain a calm facade, and a sense of humour.

It is not an easy profession.

This is what happens when society draws the lines of law, morality, compassion, or freedoms granted to us in the Constitution in the sand. They can easily be erased and moved at each whim or even washed away with the tide.

Our courageous military men and women continue to die protecting the right of vile idiots to have free speech. Our service people have honor, and those who have made the ultimate sacrifice have the highest honor. Nothing that Westboro or the Supreme Court says changes that.

Perhaps it is not the law but what has become of the character of too many.

Thanks to all for your interesting and insightful comments. Thanks especially to you, Arthur N, for focusing on a different linguistic issue in the case, the idea of bringing pragmatics to bear on interpretation of law – an idea that I think has not been adequately explored by writers on jurisprudence. The case throws up what seems to be a real disconnect between what people regard as natural, just, and decent, and what is actually sanctioned by law, and it brings into question the notion that our laws are in fact a reflection of our values. Timothy W may have summed it up best of all by saying, “Hard case.”

Given that we live in a country where presumably we are free to choose or not choose to follow a particular religious point of view,and given that our government is constitutionally bound to "make no laws concerning" religion, I fail to see how in any way one could construe the subject matter of these protests as "public import". Just exactly how is it that one person's opinion on whether or not I am going to "hell" or that "god hates" me, is a matter of public import??

That the "extremely well-educated and intelligent people" that serve on our highest court have ruled such is truly remarkable to me. Justice Alito is the only member of the court with the rational integrity to see that we cannot protect these people under the guise of free speech if we are to make that assessment on the basis of the speech being a matter of public import. It's simply not. Whether or not their speech should be protected is not my point, rather that the majority opinion is greatly flawed if it rests its case on dictating that intensely private and personal matters are now deemed to be of "public import".

In less erudite words than the esteemed court would use - EPIC FAIL. I expect a much higher caliber of work from the Court.