High court hands First Amendment win to funeral picketers

Wednesday, March 2, 2011

Peaceful picketing + public speech + public property – privacy = protection. That equation carried the day, as Chief Justice John Roberts emphasized these elements in ruling that the Westboro Baptist Church had a First Amendment right to protest near the funeral of slain Marine Matthew Snyder, even though it caused severe emotional distress to the Marine’s father.

The Court ruled 8-1 in Snyder v. Phelps that the controversial church based in Topeka, Kan., could not be held liable for intentional infliction of emotional distress, invasion of privacy and civil conspiracy — three of the five tort claims that enabled Albert Snyder to initially earn a jury award of nearly $11 million in federal district court. The 4th U.S. Circuit Court of Appeals had reversed that award on First Amendment grounds, prompting Snyder to appeal to the U.S. Supreme Court.
Central to the Court’s holding was that Fred Phelps and his fellow family member-protesters from Westboro Baptist engaged in peaceful speech on matters of public importance. “But, Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street,” Roberts wrote. “Such space occupies a special position in terms of First Amendment protection.”
Repeatedly, Roberts emphasized that speech on public issues deserves heightened First Amendment protection. “The content of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of purely private concern,” he wrote. “While these messages may fall short of refined political social or political commentary, the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public concern.”
Roberts also noted several times that the Westboro protesters picketed peacefully in a place where they had a right to be. “Simply put, the church members had the right to be where they are. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church.”
Snyder had argued most forcefully that the picketing caused him emotional distress, leading the Court to address one of its seminal First Amendment precedents of pornographer vs. preacher in Hustler v. Falwell (1988), in which the Court sided with Larry Flynt over Jerry Falwell. In that case, Chief Justice William Rehnquist wrote that outrageousness has “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Roberts cited this passage from Hustler, writing that “outrageousness … is a highly malleable standard.”
Albert Snyder had argued that Hustler v. Falwell was not controlling, because he was a private person, whereas Jerry Falwell was a public figure. Roberts did not address that distinction, instead focusing on the very public nature of Westboro’s speech.
While the Court devoted much of its analysis to the emotional-distress claim, it also addressed the invasion of privacy claim that Snyder advanced. Snyder had claimed that his privacy rights were invaded — even though he didn’t fully see the funeral protest and the picketing signs until after the funeral — because those attending a funeral are a captive audience deserving of special protection. Roberts rejected the application of the captive-audience doctrine.
Interestingly, Roberts and the majority refused to consider the online speech — the so-called “epic” rant — that Westboro Baptist posted on its website that spoke more directly about Matthew Snyder. In a footnote, Roberts said that Snyder failed to mention the epic post in his petition to the Court. “Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case.”
Justice Samuel Alito was the sole dissenter in the case. He took issue — also in a footnote — with the majority’s dismissal of the online epic, referring to the Court’s “strange insistence” that the post shouldn’t be considered. Alito also emphasized the targeted nature of the Phelps’ speech, writing: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”