Newswise — “If one thing emerged from oral argument, it is that Phelps is going to lose. The only question is what standard the Court will fix upon. From my perspective, this will be one of the few days in the history of the Roberts Court in which we can agree with former Justice Thomas Clark, ‘There is no war between the Constitution and common sense.’
”The result will not be popular with those who never have seen a First Amendment claim they did not like. And the usual suspects – the journalistic establishment, the ACLU, a group of First Amendment scholars, the Jefferson Center – filed briefs with the Court distancing themselves from the message of Phelps, but saying that our country stands for the proposition that we protect the speech we hate.
“First Amendment law routinely strikes a balance between conflicting values. Speech is balanced against order, reputation, privacy, and intellectual property among others. Sometimes the speech value prevails; sometimes it does not. Here speech needs to be weighed against privacy and the emotional sensibilities of a parent mourning the death of a son.
“To be sure, the First Amendment protects the speech we hate. But it need not and never has protected it anywhere at any time wholly apart from the damage it is intended to cause.” --Steven H. Shiffrin, professor of Law at Cornell University
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