When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction?
If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a “funeral exception” to the right to speak out in public in outrageous and hurtful ways.
It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices.
Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief.
Why should the First Amendment tolerate that?”
Read the full commentary at SCOTUSblog.
