Constitution Daily

Smart conversation from the National Constitution Center

Soldier protest case tests court, Breyer

October 13, 2010 by Adam Liptak


“I’m looking for a line,” Justice Stephen G. Breyer said, characteristically, during a Supreme Court argument on Oct. 6. The case before him concerned a protest at a military funeral by people bearing signs promoting the idea that God is killing American soldiers to punish the nation for its tolerance of homosexuality.

The line Justice Breyer was looking for was a practical one – he might say a workable one -- that would balance the protection of a family’s profound grief and the right of free speech guaranteed by the First Amendment.

You could say, Justice Breyer went on, that punitive damages should not be allowed in such cases

Justice Breyer, who has a habit of thinking aloud, threw out a couple of ideas.

“You could have the judge make the decision, since the First Amendment is involved, not the jury,” he said. In the case before the court, Snyder v. Phelps, the father of a fallen marine had won an $11 million jury award, which was thrown out by an appeals court on First Amendment grounds.

You could say, Justice Breyer went on, that punitive damages should not be allowed in such cases. (Of the $11 million award here, $8 million was for punitive damages.) Jury awards meant to punish unpopular speech, as opposed to compensatory ones that made a plaintiff whole for emotional suffering, Justice Breyer suggested, are particularly problematic under the First Amendment.

The overall goal, Justice Breyer said at the argument, is to allow some injury suits to proceed but not to “interfere with an important public message where that is a reasonable thing to do.”

“Maybe this is impossible, this task,” he said, referring to the balancing that needed to be performed in the funeral protest case. He might have been speaking about the work of the court more generally, too.

But, as Justice Breyer’s new book, Making Our Democracy Work: A Judge’s View, vividly demonstrates, he is hard at work on the task of presenting a considered and pragmatic view about the factors judges must consider in creating a workable democracy, one that takes account of interests as difficult to reconcile as private grief and free expression.

Adam Liptak is the Supreme Court correspondent for the New York Times. He writes the “Sidebar” column on legal affairs. In 2009, Liptak was a Pulitzer Prize finalist in explanatory reporting. He received his law degree from Yale Law School and practiced law prior to becoming a journalist. Liptak has taught media law at the Columbia University School of Journalism, U.C.L.A. Law School, and Yale Law School.See Liptak and Breyer discuss the new book at The National Constitution Center next Tuesday.

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