By Marianna Bettman
“G-d Hates Fags.” “You’re Going to Hell.” “Thank G-d for Dead Soldiers.” “G-d Hates the USA/Thank G-d for 9/11.” These are a few of the hateful signs carried by picketers from the Westboro Baptist Church of Topeka, Kan., at the funeral of Marine Lance Corporal Matthew Snyder of Westminster, Md. Snyder (who, incidentally, was not gay) was killed in the line of duty in Iraq. The picketers did not know Snyder or his family. This protest and the messages on the signs were the subject of a U.S. Supreme Court decision in the case of Snyder v. Phelps, and has generated much discussion.
The Westboro Baptist Church was founded in Topeka, Kan., in 1955 by Fred Phelps. Phelps has been the only pastor of the Church. He is 81 years old. Of the 60-70 members of the church, 50 are Phelps’ children, grandchildren and in-laws. Ironically, Phelps was once a well-known civil rights lawyer in Topeka (home of Brown v. Board of Education). But he was permanently disbarred in 1979 by the Kansas Supreme Court. Many of Phelps’ children are lawyers. One of his daughters argued this case before the U.S. Supreme Court.
Westboro is not affiliated with mainstream Baptist churches. One expert in the case described Westboro as practicing a “fire and brimstone” fundamentalist religious faith. The Southern Poverty Law Center, which tracks hate groups, describes it as “arguably the most obnoxious and rabid hate group in America.” Westboro believes that the military is being punished by G-d for the nation’s tolerance of homosexuality. So, the Church has taken upon itself the mission of picketing at military funerals. It also pickets at other funerals, such as that of Elizabeth Edwards, for supporting universal health care and women’s rights, among other things. But picketing at military funerals is the Church’s specialty. And members of the Church appeared with their placards of hatred at Matthew Snyder’s funeral,
Snyder’s father, Albert, fought back. He filed a lawsuit against Phelps, his Church and several of its members. The claims involved were tort claims — the subject I teach at UC’s law school. A tort is a personal injury. The two most significant torts alleged by Snyder were intentional infliction of emotional distress, which is pretty much what it sounds like, and intrusion on seclusion, a violation of the right to personal privacy. According to the Court of Appeals decision in the case, Snyder was visibly shaken and distressed throughout the trial, often reduced to tears, and occasionally had to ask to leave the courtroom to compose himself. His testimony about the distress caused him by the picketers was very dramatic. A jury awarded Snyder’s family $2.9 million in compensatory and $8 million in punitive (punishment) damages, later reduced to a total of $5 million dollars. The Church appealed. The Fourth Circuit Court of Appeals reversed, and the U.S. Supreme Court took up the matter.
At the U.S. Supreme Court, the Church did not deny that its conduct was tortious. The Church defended itself by arguing that the First Amendment shielded it from any tort damages. In an 8-1 decision written by Chief Justice John Roberts, the high court agreed.
We all know that the First Amendment protects freedom of speech in this country. While cases of hate speech are very hard to swallow, drawing lines over what speech is or isn’t protected can become a slippery slope.
Chief Justice Roberts, author of the majority opinion, wrote a primer of basic First Amendment principles which is both clear and easy to read. Whether it is persuasive is up to you.
The decision in this case turned on whether the speech involved was a matter of public or private concern. Why does this matter? Citing a series of “first principles” of the First Amendment, and quoting from precedent, Roberts wrote that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection. The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’”
But the Chief also wrote that if the speech involves purely private matters, First Amendment protection decreases because there is no threat to “free and robust debate of public issues” and no danger of timorousness or self-censorship. So, the key to the outcome of this case — and the issue on which lone dissenting Justice Samuel Alito disagreed —is whether the speech (the picketers and their signs) is fundamentally of public or private concern. Whether the statements are inappropriate or disgusting is not relevant to this determination. But context matters. As do all the surrounding facts and circumstances. Let’s take a look at some of the facts that were significant to the majority’s finding that this was protected speech.
The picketers in this case notified the authorities in advance of their plans to picket, complied with police instructions, stayed more than 1,000 feet from the Catholic Church where the funeral was held, stayed on public property, did not enter the Church property, did not yell, curse, or become violent or disruptive. In fact, Mr. Snyder did not and could not see what was on the picket signs when he went to the funeral; he was only able to read the signs that night when he was watching the news on television. That may have been because of the Patriot Guard Riders, a mostly-veteran motorcycle group that attends military funerals to protect them from the Westboro protestors by shielding Westboro’s message from view. They did this at Matthew’s funeral.
Albert Snyder argued that the funeral of a private person and the fact that several of the signs specifically targeted his son, made this matter entirely private, not a public debate on public issues. Ultimately, the Court disagreed, finding that the content of Westboro’s signs did relate to matters of public, rather than purely private concerns, and was thus entitled to First Amendment protection, reminding us that “such speech cannot be restricted simply because it is upsetting or arouses contempt…[I]f there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The Chief Justice concluded with these words. “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. 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. That choice requires that we shield Westboro from tort liability for its picketing in this case.”
Justice Samuel Alito alone dissented in this case, writing an opinion I think showed the most intense personal passion of anything he has written since joining the Court. He decried the majority’s holding that “the First Amendment protected [the church’s] right to brutalize Mr. Snyder.”
Alito’s points of disagreement with the majority are that Matthew’s funeral was an entirely private matter, and that the Church’s vicious vitriol (which he notes the Church has the opportunity to express in an almost unlimited number of places other than funerals) makes no contribution at all to the public debate on important matters of public concern. He clearly sees the funeral of a private citizen as a private matter. His empathy for Mr. Snyder’s intense emotional upheaval is palpable. “Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.”
Many states and the federal government have passed laws limiting picketing. In Ohio, it is unlawful to picket or protest within 300 feet of a funeral, or an hour before or after the funeral. Such time, place, and manner restrictions on speech have been upheld in other contexts. Maryland did not have such a law at the time this case arose, but it does now, prohibiting funeral picketing within 100 feet. But the picketers in this case would have been in compliance had that new law been in effect at the time.
One last point. There was a side issue in this case the Court majority did not take up that could have major free speech implications. It involved a vicious post-funeral Internet post by the Church called an “epic” which horrifically reviled Matthew Snyder and his parents personally and as Catholics. The question the Court dodged in this case is whether the First Amendment protects such speech posted on the Internet, specifically directed at private persons. At some point the Court is going to have to deal with such issues, which are still in their legal infancy.
Marianna Bettman is a professor at the University of Cincinnati College of Law.