Justices to consider whether First Amendment protects protesters

From the Summer 2010 issue of The News Media & The Law, page 20.

A multimillion-dollar jury verdict in favor of a father who sued after religious protesters disrupted his soldier son’s funeral might not seem directly relevant to the news media.

But when the U.S. Supreme Court in October considers whether Westboro Baptist Church can be held liable or whether their speech is protected by the First Amendment, the justices could define the extent to which speech about private citizens is protected when viewed through the lens of a larger public controversy.

The court long ago decided the extent to which public figures are protected when Rev. Jerry Falwell sued Hustler magazine over an advertising parody that he said caused him distress. In that case, the court found that the actual malice rule established in The New York Times v. Sullivan — which said a plaintiff can only recover damages for defamation if the speech at issue is intentionally or recklessly false — applies equally to other speech-related torts. The court made clear that individuals could not circumvent the protections in libel law by instead bringing claims for privacy and distress torts.

The court in Snyder v. Phelps will consider the actual malice standard and its application to private figures. The case has received a great deal of attention from a variety of First Amendment and media advocates.

The original facts of the case are somewhat unusual. The members of the Westboro Baptist Church, a relatively small organization comprised of its leader Fred Phelps and his extended family, are notorious for traveling around the United States protesting a wide variety of events and organizations for their perceived transgressions against the will of God. Among the scheduled demonstrations this summer were Justin Bieber and Lady Gaga concerts in Missouri, Jewish organizations in California and a performance of “American Idols Live” in Los Angeles.

The protest that started the case before the court occurred at the Maryland funeral of U.S. Marine Matthew Snyder, who was killed in the line of duty in Iraq. The group has picketed dozens of other military funerals with signs that convey their belief that the death of soldiers like Snyder is God’s punishment for the country’s acceptance of gays and lesbians, among other alleged transgressions.

The group complied with local regulations, but Albert Snyder, Matthew’s father, filed a lawsuit in the U.S. District Court in Maryland, saying the group’s signs, which included slogans like “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell,” cause him emotional distress.

The court sided with Snyder and ruled that the church’s conduct constituted intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion and conspiracy. The jury awarded Snyder $10 million, which the judge later reduced by half.
The U.S. Court of Appeals (4th Cir.) reversed the verdict on appeal, finding that the speech was not provably false. Further, the court found that because the speech involved a matter of public concern, the First Amendment barred recovery for any emotional harm that may have been caused by the speech.

In its ruling, the appellate court relied heavily on the Falwell case, along with the U.S. Supreme Court’s decision in Milkovich v. Lorain Journal Co. In Milkovich, a newspaper columnist argued that his statement that a local high school wrestling coach was not subject to a libel claim because it was his opinion. Though the justices did not find that there is a special speech exemption for opinion, the high court did find that when it comes to matters of public concern, even speech that could not reasonably interpreted as “stating actual facts” is protected by the First Amendment.

The Fourth Circuit used this standard — which does not distinguish between whether the subject of the speech is a public or private figure — to determine that the statements made by the Phelps group on their website and in their protests did not assert actual facts, much less provably false facts.

Snyder then turned to the Supreme Court, arguing that the Fourth Circuit erred in dismissing his claims because he was a private figure.

Amicus effort

The Reporters Committee for Freedom of the Press and 21 media organizations filed a friend-of-the-court brief in July asking the U.S. Supreme Court to affirm the Fourth Circuit. The media organizations in their brief argued that regardless of the nature of the speech at issue in this case, the standard adopted by the federal judge at trial would impose severe liability for controversial speech about matters of public concern.

The media groups in the brief stated that while “most reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful,” the court would not be able to establish a workable standard that would both protect speech interests yet exclude the Westboro protesters from First Amendment protection.

A team of lawyers led by Robert Corn-Revere of Davis Wright Tremaine in the District of Columbia wrote and filed the brief on behalf of the media organizations.
“I think anytime a report or news organization could report on speech that [potentially] falls in the category of intentional infliction of emotional distress, there is the risk of liability,” Corn-Revere said.

The case is important to news gatherers because “it is more than just the outrageous speaker that may be at risk,” he said.

The media brief also argued that the case may have important constitutional ramifications for reporters, as the media has no protection above that of the average speaker and “[a] ruling to the contrary in this case would have far-reaching effects on the media and other speakers, because the Westboro Baptist Church protests are not unique in any constitutionally meaningful sense.”

Among the organizations on the brief with the Reporters Committee, were ALM Media, LLC, The American Society of News Editors, The Associated Press, The Association of American Publishers, Inc., Bloomberg L.P., The Citizen Media Law Project, Dow Jones & Company, Inc., The E.W. Scripps Company, The First Amendment Coalition, The First Amendment Project, The Hearst Corporation, The Media Institute, The National Press Club, The National Press Photographers Association, The New York Times Company, Newspaper Association of America, The Newspaper Guild–CWA, NPR, Inc., The Radio Television Digital News Association, The Society of Professional Journalists, and Tribune Company.

Veterans groups, lawmakers and 48 states were among those that supported Albert Snyder’s position by filing briefs, which argue that the First Amendment does not bar tort liability for extreme and outrageous expression and that funerals and military funerals deserve special protections. Other organizations urged the court to issue its opinion narrowly in order to avoid the First Amendment issues.