Justice Alito’s dissent in Snyder v. Phelps, 09-751, has received more press than any of his previous Supreme Court opinions. I covered this topic last week on the CockleBur, as did Dahlia Lithwick, Jeffrey Rosen at the Washington Post, Michael Dorf, Josh Blackman, and the Harvard Civil Rights-Civil Liberties.
Yesterday, John Paul Rollert at the Huffington Post covered it again. He noted that “[w]e have seen the face of empathy on the Supreme Court, and his name is Sam Alito.” Rollert goes on to assert something that I gleaned from reading the amicus briefs filed in Phelps–this was not a close case. The First Amendment simply does not allow people to be sued for “outrageous speech.”
Rollert ends the piece with this explanation of Alito’s dissent.
Sam Alito seems like an exceedingly decent man, and one could wish for a world where the Phelps case was close enough that the felt necessities of conscience might supplement the ambiguities of constitutional law, where the empathy he clearly feels for the Snyder family might fairly rule the day.
But that is not our world, nor is it our Constitution. The First Amendment is clear; 8-1 is not close.
Today, Ed Whelan at the National Review Online disputes the characterization of Alito’s dissent as emphatic. Rather, the “difference between the two opinions [the majority and Alito's dissent] is a legal one, not a difference between dispassion and empathy.”
I think Whelan and Rollert are both right. The majority was definitely not dispassionate to the plight of Mr. Snyder. Chief Justice Roberts’ opinion was carefully crafted to explain that while the Phelps’ speech was incredibly offensive, it was still protected speech. I also think that Alito’s dissent was not all empathy, because he did, in fact, suggest a different legal standard for reviewing First Amendment speech claims from the majority. But I also think that he was writing based in part on the empathy he feels for Mr. Snyder. Anyone who reads his dissent closely cannot help but think the same. Especially considering that this was not a close case.
It will be interesting to see if Justice Alito’s “legal” emphathy will be on display in other cases.