Supreme Court Action With Major First Amendment Case

It's been an unusually busy week for the Supreme Court.  This is the third day in a row where the Court issued opinions, including one of the type usually issued at the end of the term rather in its middle.  That, of course, is the case of Snyder v. Phelps (09-751). 

That case involves the rights of a church to publicly express their views of the moral condition of the United States through picketing and other demonstrations.  The Westboro church is headed by Fred Phelps and his family, and the congregation is well known to picket military funerals and other events while brandishing signs with the words "God hates fags" and "Thank God for dead soldiers," among other statements.  In fact, their conduct would almost be entertaining if it weren't for the vile and irritating manner in which they express themselves.  Think of a Tom Green movie with even less than no humor, if that's possible.  The Court reminds us, however, that tasteless and highly offensive are not subject to proscription under the First Amendment.

The church had picketed the funeral of Matthew Snyder, a Marine killed in in the line of duty in Iraq.  The funeral was held in Maryland and a tort suit was brought by the father of the slain soldier.  The case comes to the Supreme Court on a verdict of liability for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.  The jury's damages award was several million dollars. 

The Fourth Circuit reversed holding that the statements and manner of expression were protected by the First Amendment.  The Supreme Court agreed, holding that the First Amendment can be a shield against tort liability.  The Court reasoned that Westboro's statements relate to public rather than private matters, and that the Snyder funeral was merely one of many events where the congregation expressed its views.  The public demonstration was not disguised to attack Snyder or his father as individuals.  The Court concluded its opinion with this platitude:

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.

Justice Breyer concurred and Justice Alito dissented.

The second case is not nearly as controversial.  Pepper v. United States (09-6822) involved whether a a sentencing court can consider post-sentence rehabilitation when the original sentence has been set aside.  The defendant in this case, Jason Pepper, had been up for resentencing on a drug charge.  The government appealed his original sentence as it departed significantly from federal sentencing guidelines and its own recommendations as to how much time Pepper should serve.  While serving prison time, he had successfully completed a lengthy drug treatment program.  While awaiting resentencing, he had re-established ties with his family and became a contributing member of society.  His case had gone up and down the Eight Circuit several times with the Supreme Court intervening once before in light of another of its opinions.

The Eight Circuit held in each instance that Pepper was not entitled to rely on any events that occurred after his original sentence.  The Supreme Court reversed the Eight Circuit, stating that the applicable statutes and rules allowed the defendant to bring any information to the attention of the sentencing court.  The Court noted that ealier decisions made the sentencing guidelines advisory.  Though there were conflicting sections of the Sentencing Reform Act as to how resentencing should be conducted, these were held inapplicable based on the same constitutional violations that lead to the original decision striking down the mandatory nature of the sentencing guidelines.  Justice Thomas dissented, stating his disagreement with the entire line of decisions making the sentencing guidelines advisory.  He was not heard to say "Get off the Supreme Court lawn, you meddling kids" as he issued his dissent.  [MG]