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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.