When they see a protest, what do they really see?

The Supreme Court case of Snyder v. Phelps, brought by a bereaved father against anti-gay demonstrators who protested the funeral of his Marine Corps son, was heard the first week of the term, on October 6, and we still don’t have a decision. So a recurring question as I visited law schools this February recess was: What’s holding up Snyder v. Phelps?

I recall several possible sticking points from oral arguments (transcript here; story here) but have been reminded of one particular issue at the heart of this free speech dilemma by a fascinating new paper (“They Saw a Protest”) using Westboro Church video. Yale Law Professor Dan Kahan and his colleagues who wrote the paper showed Westboro protest video to people but edited it so that half of their subjects thought they were seeing an anti-abortion protest at a health clinic and half thought they were seeing a protest against “don’t ask, don’t tell” in front of a campus recruitment center. At the core of the study — part of the Cultural Cognition Project — was the notion that people tend to form perceptions and to process facts based on their own values. And Kahan and his four co-authors found in their new experiment that what people might “see” in a video depends on their own views and values.

As they wrote, “Our subjects all viewed the same video. But what they saw – earnest voicing of dissent intended only to persuade, or physical intimidation calculated to interfere with the freedom of others – depended on the congruence of the protestors’ positions with the subjects’ own cultural values.”

In the real case at the Court, involving a 2006 protest by fundamentalist pastor Fred Phelps and his Westboro followers, Albert Snyder is trying to win reinstatement of a $5 million jury verdict for the distress he suffered from the demonstration at his son’s funeral.

One major sticking point for Snyder arises from a 1988 precedent, Hustler Magazine v. Falwell, that warns about jurors’ values and subjective assessments of offensive speech — and that applied a standard making it difficult to obtain damages for the infliction of emotional distress.

During oral arguments, Justice Elena Kagan referred to Huster‘s caution about jurors’ views of “outrageousness in the area of political and social discourse.” She highlighted “one sentence [in Hustler] that is key to the whole decision” that cautions against allowing “a jury to impose liability on the basis of the jurors’ tastes or views.”

Snyder’s lawyer tried to steer the justices away from the Hustler framework and, to questions from Kagan and others, emphasized the context of a military funeral and the “targeted nature of the attack on the Snyder family.”

The justices return to the bench next week and we may soon see in a decision (and dueling opinions) just what consumed the justices over the past several months and what exactly they saw in this protest.