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Susan Estrich
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How Law Works


My guess is that there was not a single member of the United States Supreme Court who was not personally appalled that the Westboro Baptist Church would target the funeral of a soldier who died in battle so they could get publicity for their anti-gay views. It is hard to think of any good reason why the Snyder family, having lost their beloved (and, if it matters, not gay) son while serving his country in Iraq, should be exposed to such abuse. And it's easy to understand why they would sue and seek the kind of damages that would ensure Westboro could not continue to abuse others.

Earlier this week, the Supreme Court held in an 8-1 decision that the Snyders could not recover for the emotional distress intentionally inflicted on them, even though no one doubts that it was or that it was done so intentionally. With only Justice Samuel Alito dissenting, the Court's four liberals, all Democratic appointees, joined the remaining four conservatives, all Republican appointees, to hold that the First Amendment protected the church from being called to answer for the pain it had caused.

"Speech is powerful," Chief Justice John Roberts declared, writing for the majority. Here, two reasons demand its protection, the Court held. First, however inarticulately and crudely, the signs and taunts of the Westboro Church members went directly to issues of public importance, which "occupies the highest rung of the hierarchy of First Amendment values." Second, the church members complied with all other laws applicable to the time, place and manner of public assembly. The church members "had the right to be where they were" — 1,000 feet from the site of the funeral.

The distress, then, "turned on the content and viewpoint of the message conveyed," which is precisely what the First Amendment protects.

Of course, the First Amendment says nothing about content restrictions being the worst kind of regulation of speech. Nor does it say anything about speech on public policy issues occupying the "highest rung." It doesn't say anything about time, place and manner restrictions, or how far protestors can be kept away, so long as the rules apply to everyone. All it says is that "freedom of speech," along with a free press and the right to assemble and petition for grievances, shall be protected. That's it.

The rest has come from judges, especially Supreme Court justices, mostly in the last hundred years, who have gone way beyond divining the intent of the Founders to develop a whole body of law as to what the First Amendment does and does not protect. The law has obviously changed over time, often (albeit not explicitly) to reflect the various wars (the Red Scare, for instance) we have faced and the fear they engender.

But here's the part that gets lost in the assumption — reinforced by the confirmation processes of the past two decades and by close majorities in some big cases — that it's all just politics: If it were all "politics," Westboro would have lost and the soldier's family would have won.

There is still such a thing as "law," even if a new conservative Court could theoretically jettison it all. Yes, there are close cases. But there are many more that are not close because, as here, two centuries have yielded a "right" answer, even if it is judge-made.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



13 Comments | Post Comment
jackson's&perkins sold for over 30,000,000] that was before the devil's brgaide. and possable a splice to a mission we had in the himmlyias. your son meets his app;diss.;diet.but it's about her!
Comment: #1
Posted by: robert.frach
Thu Mar 3, 2011 9:58 PM
Actually, the first amendment states that "Congress shall make no law...abridging the freedom of speech,...
The whole point is not that the speech should be "protected" but that no laws can be made against it (according to the constitution). Having said that, I must also say that to politicize a funeral is just about as low as you can get in terms of shameful, uncouth, and just plain tacky behavior.
Comment: #2
Posted by: David Ash
Fri Mar 4, 2011 12:49 AM
SNYDER v. PHELPS is very good news for honorable Americans who respect the U.S. Constitution, thus, Synder v. Phelps is very bad news for liberals.

If any group of people despises “free speech” for everyone, that group of people would be liberals. Liberals, the champion illegal thought (i.e. hate crime, but applied only to white people), use tyranny to censor those with different opinions. Make no mistake, the Supreme Court ruling in Snyder v Phelps is a huge blow to the tyranny of liberalism.

Susan writes: “There is still such a thing as "law," even if a new conservative Court could theoretically jettison it all.”

LOL, it is not a “conservative Court” that endangers our US Constitution but a LIBERAL court is certainly a danger to our constitutional republic.

Which president just refused to enforce a lawful act of Congress (“The Defense of Marriage Act)? That would be KING Obama . . . a Liberal Democrat. I do not know if I agree with The Defense of Marriage Act but what I do know is that the President (i.e. the Head of the Executive Branch of our Government) is not a KING and does not have the power to declare a law unconstitutional. The personal views of a US President do not override his duty to defend the law of the land. But if such a President sees himself as a KING and above the law, I suppose the opposite is true, at least to such delusional KING.

To make matters worse, our Attorney General is an OPEN racists. Attorney General Eric Holder, who is black, openly said that he will NOT prosecute the “black panthers” (who are black) basically because “they are my people”. I suppose Liberal Democrat, John Wiley Price, a black Dallas County Commissioner, was simply following Holders' lead when Price said, “all you are white. Go to hell!” to members of the public speaking out at a county court meeting this past February.

Well, rip the blind fold off the lady with the scales for our “Justice” Department is clearly blind no longer and willing to selectively enforce the law based on the way someone looks.

So we have a King for a President and an OPEN Racist for an Attorney General. Why to go Liberals, I am sure you are very proud today.

But as least honorable Americans have Synder v. Phelps, and assuming King Obama does not declare such decision unconstitutional, we still have a right to call a racist a racist. Although the odds of this post not being deleted is only 50/50.

Comment: #3
Posted by: SusansMirror
Fri Mar 4, 2011 6:21 AM
Re: robert.frach
Comment: #4
Posted by: Early
Fri Mar 4, 2011 6:22 AM
I personally think a more practical was to deal with this scumbag group is to turn the matter over to Smith and Wesson.
Comment: #5
Posted by: Paul
Fri Mar 4, 2011 8:36 AM
Wow, Susansmirror. I bet you don't recognize yourself as part of the problem. (mark my words, you are, indeed, part of the problem--luckily most of America is realizing how they have been "had" with all these ridiculous labels. ..but here are a couple of more I would wager you have stuck to yourself: Republican, Christian, family-values oriented. You might also want to try on for size: Mentally/emotionally challenged, delusional, and obnoxious.
Comment: #6
Posted by: N
Fri Mar 4, 2011 8:38 PM
----STEEER CLEAR of these totally set-up, chain-pulling distractions.

GO to the very root of what's destroying us (aside from God himself).

CHECK OUT the background to the ongoing destruction of doctrine
here and elsewhere. Learn about the the cunning employment of the
ARMINIAN HERESY by the likes of the eugenics-driven, Globalist,
Rockefeller Foundation 'Council of Churches'.

IT will blow your mind!
Comment: #7
Posted by: free bee
Fri Mar 4, 2011 10:55 PM
Though I am much more conservative I generally like to read what Ms. Estrich has to say. But in this case I wonder if she would be so enthusiastic about the law if the the 4 liberals on the court had joined the 5 conservatives to uphold the constitutional right for INDIVIDUALS to bear arms???
Comment: #8
Posted by: Roscoe West
Sat Mar 5, 2011 11:23 AM
This was a correct decision by 8 of the 9 Justices and as a liberal, I agree very much with the decision. However, I strongly disagree with the protesters from that so-called church. How sad it is to lose a son or a daughter who passes in the service of their country War is such a terrible thing. It robsw us of our souls. The answer to this dilemma is to fight all that much harder against those who would send these kids off to war when they themselves have nothing so dear to lose. It is time to bring back the draft. Only when those who sip their cocktails at the country club have to worry like the mothers and fathers and family of those who go into battle, will the appetite for war be blunted. Peace is the only answer to these protests.
Comment: #9
Posted by: robert lipka
Sat Mar 5, 2011 7:50 PM

Re: N

Mentally/emotionally challenged to the point of being obnoxious, perhpas. But I am not delusional.

Comment: #10
Posted by: SusansMirror
Mon Mar 7, 2011 6:07 AM
To Robet Lipka. Get into the real world instead of some liberal fantasy world. As was so correctly said about all liberals firmly in mind " War is an ugly thing, but not the ugliest of things. The decayed and degraded state of a moral and patriotic feeling which thinks that nothing is worth fighting for is much worse. A man who has nothing for which he is wiling to fight: nothing he cares about more then his own safety is a miserable creature who has no chance of being free unless made and kept so by the exertions of better men than hinself." John Stuart Mill

And to Susan's Mirror.and N. Susan's mirror you know when you have won the substantive argument when all that liberals like N can do is revert to form and sling names and insults. "The sting in a rebuke is the truth." Benjamin Franklin.

Comment: #11
Posted by: joseph wright
Mon Mar 7, 2011 4:43 PM
@Susansmirror: I wonder if you protested as loudly when George W. Bush refused to enforce the Fourth Amendment.

As for this column, I would just like to add to the discussion the fact that research shows that those who scream the loudest about other people's sexuality are the ones least secure in their own.
Comment: #12
Posted by: Tom Blanton
Tue Mar 8, 2011 12:33 PM
Re Blanton: and the congenital liar and fool we have as a supposed President is doing precisely what about the ilegal searches and invasions of privacy by Incompetano and her TSA, and about the violations of the 10th amendment in his pursuit of Obamacare and support of illegal immigration and about his abject failure to enforce section 4 of Article IV of the Constituion, to wit "The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against invasion...." ?

The same research shows that liberalism is a mental disorder.
Comment: #13
Posted by: joseph wright
Tue Mar 8, 2011 1:43 PM
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