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Awards for Amicus Briefs in Snyder v. Phelps

by Professor Will Huhn on September 27, 2010

in Constitutional Law,Freedom of Religion,Freedom of Speech,Freedom of the Press,Wilson Huhn

    Individuals and groups who have an interest in a question of law that is before the Supreme Court may file a "friend of the court" brief with the permission of the Court and the parties.  These amicus briefs are often very illuminating and have influenced the Court's decision in many cases.  They may also be narrowly focused on a particular point of view or just plain silly.  Several amicus briefs have been filed in Snyder v. Phelps, the military funeral protester case.  In this post I identify the shining stars and the burnt out husks among the amici.

     The "Blue Ribbon" awards go to the brief filed by 48 States and the District of Columbia on behalf of the Snyder family, and the A.C.L.U. brief on behalf of the Phelps family.  (The Phelps family comprise most of the members of the protesting group, the Westboro Baptist Church of Topeka, Kansas).  These two briefs admirably address the principal arguments on both sides; they are clear, concise, and persuasive.  They are, in my opinion, more informative and more focused on the relevant constitutional issues than the briefs filed by the parties themselves.  (Here are the petitioner's brief, the respondent's brief, and the petitioner's reply brief.)  Kind of makes you wonder about the utility of the standing doctrine, doesn't it?

     The "Mugwump" award goes to the Anti-Defamation League for its "Brief in Support of Neither Party."  Like I and many other Americans, the ADL can't make up its mind whether it loves the First Amendment more than it hates Hate Speech.  The ADL suggests that the Court should dismiss the appeal and send the case back to the lower courts because the facts of this case don't clearly present the constitutional issues that were raised in the petitioner's brief.  The problem with that advice is that we are stuck with the facts that are present in this case, and these two families and the country deserve an answer to the important First Amendment issues that this admittedly hard case presents.   In a similar vein, I recently disagreed with the ADL's lukewarm suggestion that Park51 (the "Ground Zero Mosque") should be built elsewhere, but kudos to Barry Morrison of the ADL for his defense of Muslim-Americans in his inspiring op-ed "When Hate Takes Over, the Results Never Turn Out Well."

     The "Blowhard" award goes, unsurprisingly, to the brief filed by forty United States Senators on behalf of the Snyder family.  This group, led by Majority Leader Harry Reid and Minority Leader Mitch McConnell, spend a significant portion of  their brief talking about all they have done for military families rather than about the case at hand.  The Senators also win the "Friendly Fire" award because one of the arguments they do make cuts the other way.  The Senators make much of the fact that they enacted two laws regulating protests at military funerals requiring protesters to stand at least 300 feet away from a cemetery, church, or funeral home.  The Phelps family was 1000 feet away from the church where Lance Corporal Snyder was honored.  Nice going, Senators!  I have to admit, though, that the Senators are dead right in criticizing the Court of Appeals for applying a "defamation" standard and ruling against the Snyder family because the statements made by the Phelps' family constituted "hyperbole" and "exaggeration," not misstatements of fact.  By the time this case reached the Court of Appeals the Snyders' claim for defamation had been abandoned; the Snyders' remaining claims were actually for invasion of privacy and intentional infliction of emotional distress.  For that reason I hereby also confer upon the Senators the coveted "Blind Squirrel" award.

     The "Bright Shining Star" award goes to the brief filed by the John Marshall Law School Veterans Legal Clinic and the Chicago School of Professional Psychology.  Their brief argues that "The Circumstances Surrounding a Servicememberâs Deployment and Combat Related Death are Unique" and "The Grieving Process Related to the Death of a Servicemember is Distinct from Other Deaths," and it presents evidence in support of both propositions. 

     The "Don't Throw the Baby Out" award goes to The Reporters Committee for Freedom of the Press and Twenty-One News Organizations for the brief they filed on behalf of the Phelps family … and, of course, themselves.  They argue:

     Reporters, editorial boards, commentators, authors, and others in the press discuss both public and nonpublic figures in the course other their work.  …  Whether it consists of caustic and emotional debates, a scathing editorial cartoon, or an expose revealing disturbing facts about an individual, the press often must go "beyond the bounds of good taste and conventional manners" in order to perform its constitutionally protected function. 

The runner-up in this category is the brief filed by the Foundation for Individual Rights in Education and five law professors, arguing that if the Snyder family wins this case it will threaten free speech on campus.

     The "Wait a Minute" award goes to the brief filed by the Thomas Jefferson Center for the Protection of Free Expression, the Marion B. Brecher First Amendment Project, the National Coalition Against Censorship, and the Pennsylvania Center for the First Amendment.  They contend that the Snyder family should lose under Maryland law – that what the Phelps family did does not amount to either invasion of seclusion or intentional infliction of emotional distress under state law.  The obvious problem with this argument is that the Supreme Court of the United States has no authority whatsoever to determine what the law of Maryland is.  The amici are actually arguing, however, that under the doctrine of "constitutional avoidance" the Court should remand this case to the lower courts for a determination as to whether there are non-constitutional grounds for dismissing the case.

     Briefs earning "Honorable Mention" include the Liberty League's exhaustive analysis of the "captive audience" doctrine, and a brief in which the American Center for Law and Justice argues that the Snyder family should not prevail unless they can prove that the Phelps family did not merely cause a "disturbance," but that they acted with "maliciousness."  

     You may check out the remaining amicus briefs in Snyder v. Phelps at ABA Preview, a convenient and user-friendly source for links to briefs in pending and past Supreme Court cases. 

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

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