4th Circuit affirms protection for repulsive speech

Wednesday, September 30, 2009

The 4th U.S. Circuit Court of Appeals last week reminded us of two
unfortunate realities. First, defending First Amendment freedoms often involves
defending sickening speakers. Second, in many instances, the more outrageous the
speech, the more likely it is to be protected from civil liability.

Snyder v.
involved the all-too-familiar efforts of Fred Phelps and his
Topeka, Kan.-based Westboro Baptist Church to garner news media attention at the
expense of family and friends grieving the loss of soldiers killed in battle. In
this case, the soldier was Matthew Snyder, a native of Westminster, Md., who was
killed in Iraq on March 3, 2006.

Snyder was buried a week later in his hometown. Phelps, continuing a practice
he has engaged in for several years, descended on Westminster with two of his
daughters and four of his grandchildren to picket the funeral. Their mission,
they freely admitted, was to publicize their purportedly religious beliefs that
God hates homosexuality and punishes the United States for its tolerance of
homosexuality, particularly in the military.

Outside the funeral, the picketers carried signs that read, “God Hates the
USA/Thank God for 9/11,” “America is Doomed,” “Pope in Hell,” “Fag Troops,”
“You’re Going to Hell,” “God Hates Fags,” “Semper Fi Fags,” “Thank God for Dead
Soldiers,” “Thank God for IEDs” and “Priests Rape Boys.” The group then
continued its protest in Annapolis, Md., at the Maryland State House and the
U.S. Naval Academy.

After returning to Kansas, one of Phelps’s daughters carried the protest
further, posting on the church’s Web site, www.godhatesfags.com, an “epic,” “The
Burden of Marine Lance Cpl. Matthew Snyder,” in which she claimed, among other
things, that Snyder’s parents “taught Matthew to defy his creator,” “raised him
from the devil” and “taught him that God was a liar.”

Moreover, she wrote, “God rose up Matthew for the very purpose of striking
him down, so that God’s name might be declared throughout all the earth. He
killed Matthew so that His servants would have an opportunity to preach His
words to the U.S. Naval Academy at Annapolis, the Maryland legislature, and the
whorehouse called St. John Catholic Church at Westminster where Matthew Snyder
fulfilled his calling.”

As planned, the group’s hatred generated news coverage of the funeral, and
Snyder’s father saw television coverage of the protests and signs. He also later
discovered the epic on the church’s Web site. He then sued Phelps and the others
for invading his privacy and intentionally causing him emotional distress.

Although Maryland, like the federal government and nearly 40 other states,
prohibits protesters from interfering in military funerals, that statute was not
an issue in Snyder, as no one claimed the picketers had interrupted the service.
Instead, Snyder’s father claimed the group’s conduct was so offensive that it
interfered in his grieving.

According to the trial court, Snyder’s father’s distress was genuine.

“Throughout the trial,” the court wrote in a post-trial opinion, “Plaintiff
demonstrated significant emotion, appearing visibly shaken and distressed, and
was often reduced to tears. On occasion during the trial, Plaintiff requested
and was granted leave from the courtroom to compose himself. The jury witnessed
firsthand Plaintiff’s anguish and the unresolved grief he harbors because of the
failure to conduct a normal burial.”

Having witnessed this anguish, the jury awarded Snyder’s father $2.9 million
in compensatory damages and $8 million in punitive damages. (The trial court
later reduced the punitive-damage award to $2.1 million, for a damage total of
$5 million.) The protesters appealed, claiming their speech was protected under
the First Amendment.

The 4th Circuit, though troubled by the picketers’ distasteful opportunism,
agreed. Quoting former 4th Circuit Judge Kenneth Hall in Kopf v. Skyrm
(1993), the appeals court noted Sept. 24 that judges defending the Constitution
“must sometimes share [their] foxhole with scoundrels of every sort, but to
abandon the post because of the poor company is to sell freedom cheaply.” Then,
quoting Justice Felix Frankfurter's dissent in United States v.
(1950), Hall added: “It is a fair summary of history to say that
the safeguards of liberty have often been forged in controversies involving not
very nice people.”

The duty to protect offensive speech, the court said, also has long been
recognized by the U.S. Supreme Court. In 1940, for example, the high court in
v. Connecticut
emphasized the long-term benefits of tolerating repulsive

“To persuade others to his own point of view, the pleader, as we
know, at times, resorts to exaggeration, to vilification of men who have been,
or are, prominent in church or state, and even to false statement. But the
people of this nation have ordained in the light of history, that, in spite of
the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of citizens of a

These excesses or abuses, however, are not protected from civil liability if
they express statements of fact about non-public figures. To decide whether such
is the case, the court of appeals said, it is necessary “to assess how an
objective, reasonable reader would understand a challenged statement by focusing
on the plain language of the statement and the context and general tenor of its
message.” Also important is the verifiability of a statement, because “a
statement not subject to objective verification is not likely to assert actual

Though concerned that a few of the signs and some of the statements in the
epic at least implied false facts about Snyder, the court ultimately concluded
that their general tenor negated any impression that they intended to state

Looking first at the signs, the court said they did not assert facts about
Snyder because they contained “strong elements of rhetorical hyperbole and
figurative expression.” Moreover, the court said, a “distasteful protest sign
regarding hotly debated matters of public concern, such as homosexuality or
religion, is not the medium through which a reasonable reader would expect a
speaker to communicate objectively verifiable facts.”

Turning to the epic, the court said the protesters could not be understood to
have stated false facts about Snyder in it. “They utilized distasteful and
offensive words, atypical capitalization, and exaggerated punctuation,” the
court wrote, “all of which suggest the work of a hysterical protestor rather
than an objective reporter of facts.”

Although the court’s ruling is entirely consistent with existing First
Amendment law, one cannot help but be troubled by the notion that a hysterical
speaker is entitled to more protection than a calm one, particularly when the
complaint is that the speaker caused emotional harm. It surely was of no comfort
to Snyder’s father that the authors of the epic ignored (or did not know) the
rules of capitalization and punctuation, and the group’s use of inflamed
rhetoric likely increased, rather than decreased, the pain their words caused
Snyder’s family.

Ultimately, though, the message in Snyder is that one family’s pain,
however real and however justified, cannot trump the First Amendment freedoms of
a protester, however hysterical and however offensive. Undoubtedly, it’s more
than a little clichéd to note that those freedoms were among the many Matthew
Snyder died protecting.

But, for better or worse, it’s also true.