JUSTICE ALITO: So let me -- let me give you this example. Suppose someone believes that African Americans are inferior, they are inherently inferior, and they are really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred.Tr., 39:23-40:11.
Now is that in -- this is just any old person on -- any old African-American on the street. That's a matter of public concern?
MS. PHELPS: I think the issue of race is a matter of public concern. I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.
Unless I'm mistaken, Ms. Phelps has made the first ever use of the phrase "up in your grill" in U.S. Supreme Court history. Thus doth the law expandeth; we've come a long way since Blackstone.
By the way, Justice Kennedy eviscerates Phelps' argument at a stroke -- not every attribute about someone is a matter of public concern simply because someone doesn't like that thing -- but that isn't the observation I'm making here. Not that Kennedy's point about public issue versus private figure is dispositive. I don't see how the ruling in this case can be anything other than that the Maryland law in question authorizing a tort cause of action against funeral protestors can possibly be Constitutional. Unless the Court is willing to break new ground, this ought to get at least eight votes.
While it's very easy to be outraged at Fred Phelps and the rest of his scummy family for what they do, I for one am not willing to sacrifice the Constitution simply because of scum of this nature hate homosexuals so much that they lack the common decency to allow mourning families to bury their veteran children with dignity. They should be ridiculed and held up to public obloquy and shame, not made subject to custom-crafted tort claims whose goals are overt censorship.