Distinguishing Snyder from Rosenbloom

University of Houston Law Center's Professor Leslie Griffin of the Religion Rogue blog analyzes the recent Supreme Court decision in Snyder v. Phelps in the context of an earlier case, Rosenbloom v. Metromedia. Professor Griffin suggests the Court may be moving toward a Free Speech analysis suggested by Justice Brennan in Rosenbloom, which protects speech about matters of "public concern" even when it causes harm to private individuals. I believe that Chief Justice Roberts's opinion in Snyder is written in such a way that its analysis is distinguishable from Justice Brennan's.

The speech in Rosenbloom which Justice Brennan suggested was protected was about Rosenbloom himself; he was described as "a main distributor of obscene material in Philadelphia." I believe that stands in contrast to the facts considered important by the majority in Snyder. As Justice Alito points out in Part IV of his dissent, the majority first confines their analysis to the placards at the funeral, putting aside the events before and after (which included a press release and an internet "epic"). Even in that limited context, the Court had to further decide that the "predominant theme" of the speech was of public concern, since some of the signs could also reasonably be interpreted as referring to the plaintiff or his family. The result was a conclusion that the speech in Snyder wasn't really about the plaintiff at all, which I believe is how the Chief Justice could conclude that it was in the category of speech afforded the most protection by the Supreme Court. I believe this is an important distinction between Rosenbloom and Snyder; if that's true, then we may not yet know if this court might adopt Justice Brennan's reasoning in a case applied to speech either about or targeted at a private individual.