No Loss For Words: SCOTUS Sustains First Amendment Protection for Military Funeral Protests in Snyder v. Phelps

Those who have seen Louis Theroux’s BBC documentary, The Most Hated Family in America, and wondered whether Westboro Baptist Church was inevitably headed for a lawsuit, were vindicated when Albert Snyder finally brought the infamous Phelps family to court after they protested at the funeral of his son.  Marine Lance Corporal Matthew Snyder was killed in the line of duty while serving in Iraq.  The three-generational Phelps family, led by Pastor Fred Phelps, is widely known for having protested at nearly six hundred funerals for slain soldiers over the last twenty years.  In March 2006, at Matthew Snyder’s funeral, the Phelps’ protested against homosexuality in the army (even though Matthew was not gay), his service in the U.S. Army, and the family’s support for the Catholic church, carrying slogans such as, “Thank God for Dead Soldiers,” “God Hates You,” and “You’re Going to Hell.”

After seeing the picketers on a news broadcast, Albert Snyder filed an action against Mr. Phelps, Phelps’ daughters and the Westboro Baptist Church, claiming, among other things, the tort of intentional infliction of emotional distress.  After a jury awarded Mr. Snyder compensatory damages of $2.9 million US dollars and punitive damages of $8 million dollars, a decision affirmed by a District Court judge (though he reduced the amount of punitive damages), Mr. Phelps appealed to the Fourth Circuit Court of Appeals, claiming that his protests were fully protected by the freedom of speech in the United States Bill of Rights.  The First Amendment states:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Fourth Circuit allowed Mr. Phelps’ appeal (PDF), and Mr. Snyder was granted certiorari by the U.S. Supreme Court (“SCOTUS”).

On March 2, the majority of the Court (Justice Alito dissenting) upheld the Fourth Circuit decision in Snyder v. Phelps, No. 09-751 (PDF), ruling that the First Amendment shielded the picketing activities of Westboro Church from tort liability.  Rather than tackling the elements of the civil claim, the majority asserted that the public nature of Westboro’s protests warranted “special First Amendment protection,” again underscoring the ascendancy of freedom of speech in American law, an approach Canadian courts have tended to avoid.

The SCOTUS Ruling: “As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Writing for the majority, Chief Justice Roberts concluded that the content of Westboro’s signs clearly addressed broader issues of public concern, and that this type of speech was constitutionally protected.  He concluded that, though far from being “refined social or political commentary,” Westboro’s slogans were directed at the general “political and moral conduct of the United States and its citizens” rather than at Matthew Snyder specifically.  Furthermore, Chief Justice Roberts emphasized that Westboro protested peacefully in compliance with police orders in a “public place” about 1,000 feet away from the church where the funeral was being held.  He further highlighted that Mr. Snyder had only seen the tops of the picketers’ signs as he drove to the funeral.

In a concurring judgment, Justice Breyer conceded that picketing – even picketing on matters of public concern – could still be regulated by the State, but maintained that in this context Westboro had protested lawfully in compliance with police directions.  In his opinion, awarding Mr. Snyder damages would have unduly restricted freedom of speech without guaranteeing a greater protection for individuals against severe emotional harm.

The Dissent: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

In his dissent, Justice Alito challenged the majority’s argument that Westboro’s protests were not directed at the private person of Matthew Snyder.  He maintained that the Phelps family had specifically chosen to picket at Snyder’s funeral rather than at any other “public place”; that they had issued internet posts before and after the protest targeting the soldier and his family; and that a “reasonable person” would have drawn a connection between the messages on the signs and the deceased.

Moreover, Justice Alito found that “the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.”  In other words, constitutionally protected speech did not mechanically shield the originators from harm created by that speech.  Both the First Amendment freedom of speech and the tort could co-exist.  In this case, both the jury and District Court were satisfied that the plaintiff had proven the tort of intentional infliction of emotional distress, that

the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.

In fact, the respondents did not contest this.  Rather, they had insisted that their speech deserved “special protection” under the First Amendment.  The tort claim could still, therefore, have succeeded.

The First Amendment: Sword or Shield?

The majority’s reasons raise several questions.  First, they appear to confuse the public content of speech with speech used in a public place.  It continued to emphasize that Westboro’s protest occurred “at a public place” and that “the church members had a right to be where they were.”  Considering that the speech the majority purported to protect was that which related to “matters of public concern,” Chief Justice Roberts’ ongoing assertion that the defendants were at a public place is overstated.  Furthermore, although the majority felt at liberty to explore the location and history of Westboro’s protests, its reasons entirely overlook that both the purpose and effect of the picketers’ speech, though perhaps containing various “public” matters, were to target and harangue the Snyder family.  The defendants’ press release before the protest and their online account afterwards made it clear that they intended to personally attack Matthew Snyder with messages such as, “God Almighty killed Lance Cpl. Snyder.  He died in shame, not honor.”  Consider the following excerpt from a post the Phelps’ published after the picketing:

God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew.  He was an arrow in your quiver!  In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD!  You did JUST THE OPPOSITE—you raised him for the devil.

Finally, the Court seems too eager to overrule a careful finding that was made by a jury and affirmed by the District Court.  The respondents ultimately did not contest the finding that Mr. Snyder had suffered “severe and lasting emotional injury” from their speech.  In fact, the harm was so serious that the jury, after having heard Mr. Snyder’s testimony and deliberated judiciously, decided to award the plaintiff over $10 million dollars in compensatory and punitive damages.  First Amendment experts have stressed that while the “ordinary person” might be stunned by the SCOTUS decision, the judgment merely fell in a line with a string of precedents that upheld the importance of free speech.  However, the majority’s decision to disregard the jury’s verdict and accommodate Westboro’s protests might also be a sign that American law, meant to uphold broad societal values, may, in fact, be frustrating them.

SCOTUS’ decision to use the First Amendment to shield the Phelps family from liability stands in stark contrast to the approach that Canadian courts have adopted.  For instance, my recent commentary on the SCC’s Bou Malhab ruling shows that while freedom of speech may play into the background of judicial analysis, Canadian courts will not use it to overrule a civil claim where each element of the claim has been successfully established.  Even explicit s. 2(b) freedom of expression Charter claims must satisfy the s. 1 justification analysis.  As Justice Alito suggested in his dissent, there is no apparent reason why freedom of speech and the tort of intentional infliction of emotional distress cannot co-exist, even complement one another.  “Special” First Amendment protection was not, in my opinion, a well-founded, well-reasoned legal principle.  It merely demonstrated that there is no “balance” between freedom of speech and protection from harm created by speech.  Rather, freedom of speech is simply supreme.

Ultimately, the SCOTUS decision appears to undermine a basic tenet: there is freedom of speech, but, as with any other action, you have to be prepared to accept the consequences of that speech, particularly if real and serious harm is sustained.  You can’t use it as both a sword and a shield.

For more reading on reactions to the SCOTUS decision, check out a case comment written by NYU Professor Richard A. Epstein here, and a comprehensive look at the implications of the judgment by Texas Southern University Professor Deana Pollard Sacks here.

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