"Public concern" in Snyder v. Phelps

The Court may have gotten the decision correct in this case, but not the opinion, and that was because it was not argued as well as it should have been on behalf of Snyder, et al.

First, it is not correct to base the decision on the First Amendment. That only restricts government actors involving legislation, not private actors. It is properly a case of equity over the private rights of the opposing actors in conflict.

The argument could have acknowledged that the position of Phelps, et al., was the expression of a matter of public concern, while demanding that such expression conflicted with the privacy rights of Snyder, et al., and that to resolve the conflict, it was reasonable to put time, place, and manner restrictions on Phelps, et al. In other words, to separate them by a reasonable distance.

There have to be bounds on inflicting emotional distress on a private party as a way to get public attention. If Phelps, et. al., had shouted their message with a megaphone into the ears of Snyder, et. al., that would be a clear violation, as would pointing an unloaded gun at them. So there are ways to inflict emotional distress for an expression of public concern that cross the line. The question is where to draw that line. In my view, the Court, instead of trying to draw that line carefully as a matter of equity, chose instead to make it a binary decision, on an incorrect constitutional ground. The Court is a court of equity as well as a court of law, and not all cases it hears are properly decided on constitutional grounds. If the aim was a prudential one of avoiding future litigation exploring the boundaries of how much emotional distress is too much, then it may have done that, but such issues are not properly avoided by courts. Ultimately, it is juries who should decide where to draw the lines. The court erred in not leaving it to them.

Now it has been argued by Malla Pollack that:

As for the elements of the torts alleged -- The protesters were not even easily within sight of the funeral procession. They did not intrude on anyone's "seclusion"- even if, arguendo, a funeral of this sort is a "secluded" location. As for government actors, the court imposing civil liability on the protesters counts -- as does the public imposition of legal rules in defining the torts alleged -- NY Times v Sullivan, remember.

To which I reply:

Yes, and on those facts the Court could properly draw the line and hold that the separation was sufficient to avoid actionable injury. All rights are subject to constraint or disablement by judicial due process, particularly where there is a conflict of rights. It is legislative restriction that may make the Ninth (not the First, which only restricts Congress) applicable, and that was not involved in this case. If the state had legislated reasonable time, place, and manner restrictions intended to reduce conflicts of rights, as long as the expression was not unduly burdened, that should not be considered a Speech Right violation. A statute creating a judicial jurisdiction for tort claims, and defining standards for such torts, is not per se a restriction of any of the rights involved, as long as it is narrowly and appropriately tailored to the facts of rights conflicts.

Sullivan based the right on the wrong amendment. It should have cited the Ninth, not the First. The Ninth includes all the other rights, and in particular, federally justiciable rights against the action of state actors.