BENCH MARK: A minority of one

By Hon. Robert J. Lunn

The Daily Record Newswire

"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. ..."

-- U.S. Supreme Court Justice Samuel Alito, dissenting in Snyder v. Phelps et al.

Where do I begin?

I am not a constitutional scholar. I have never even played one on television. I do, however, have 40 years of legal training, including 14 years on the New York Supreme Court bench, the last four as an associate justice on an appellate court. More importantly, I am the self proclaimed Commissioner of Common Sense -- the Commish.

Last Thursday, a paralegal named Chris came into my office somewhat agitated and asking for my opinion about the U.S. Supreme Court ruling in Westboro and the lone dissent by Justice Samuel Alito. She called Justice Alito her hero.

I was embarrassed to inform her that I hadn't yet read the decision, being consumed with such weighty issues as the return of a lawn tractor and a motor vehicle in a hotly contested matrimonial dispute.

I was smart enough to know that an 8-1 decision is never a good thing if your views are embodied in the "1." Yes, sadly that is rooted in actual experience. It was never easy to be a sole dissenter on those rare occasions when it happened, particularly where the split cannot be explained on ideological grounds.

In Westboro, Chief Justice John Roberts wrote the majority decision, joined in by everyone on the court, both liberals and conservatives -- everyone, that is, except Justice Alito. Chris was right. I likewise salute him.

The case involved a test of First Amendment free speech protection: the rights of a Kansas church congregation to protest at a military funeral. The Westboro Baptist church believes that the soldiers' deaths are a direct consequence of this country's tolerance of homosexuality. They displayed signs and banners saying "God hates fags" and "Thank God for dead soldiers."

They spewed hate-filled verbal attacks on the family of Marine Lance Cpl. Matthew Snyder, killed in the line of duty in Iraq in 2006. Snyder was not gay. Westboro Church first issued a press release announcing their intentions and then appeared at the funeral service thus turning a private burial of the Snyders' son into a media event.

The Snyder family sued the Westboro church of Kansas and its leaders, alleging intentional infliction of emotional distress and invasion of privacy. The family ultimately recovered a trial verdict of $5 million. The Supreme Court set it aside in its 8-1 decision. They held the defendant's activity to be protected free speech.

As a 9-year-old kid I was privileged to watch the great Mickey Mantle play a baseball game at Fenway Park in Boston. He struck out twice. As much respect as I have for both him and the Supreme Court, they both completely whiffed.

I began this column by noting that I am not a Constitutional scholar but I did take at least two courses in law school. Weren't we taught that free speech is not without its limitations? Remember, the old standby that no one can reasonably be permitted to stand up and scream "fire" in a crowded movie theatre?

Justice Alito had it right. The jury found that the church's outrageous conduct caused the petitioner father grave injury. He wrote in his dissent that "In order to have a society in which public issues can be open and vigorously debated it is not necessary to allow the brutalization of innocent victims like petitioner."

A fierce protection of perhaps our most cherished right is not a license to launch a vicious verbal assault. The father was not a public figure and he was not in a public forum. He was a grieving parent who also had rights -- the right to bury his son in peace and dignity.

The court has completely gutted the long recognized tort and recovery for the intentional infliction of emotional distress -- a recovery which in itself has historically been meted out very sparingly and limited to those instances where the distress is "so severe that no reasonable man could be expected to endure it," Restatement (Second) of Torts, §46, Comment j (1963-1964). It is so limited in scope that it cannot be reasonably argued that to allow this civil action and recovery would have a chilling effect on free speech.

Common sense dictates that personal abuse, whatever the form, is not communication of information or opinion safeguarded by the Constitution. The verbal attack was carefully calculated to intentionally inflict grave injury.

The First Amendment should not stand in the way of the Snyder family's recovery. Had the Supreme Court seen fit to affirm the trial verdict, free speech would have remained healthy and survived quite nicely. (Footnote: Despite Westboro's victory, the pastor of the church recognizing an earlier pro-gay decision by the court quickly proclaimed that the nine justices were likewise hated by God and would rot in hell.)

God bless the U.S.A.!


The Hon. Robert J. Lunn served for 14 years (1995 to 2008) on the New York State Supreme Court. He is a partner at Trevett, Cristo, Salzer and Andolina. Lunn is the contributing author to three publications from West Publishing, the most recent being The Companion Handbook for Pattern Jury Instructions. He can be reached at

Published: Thu, Mar 10, 2011