“Morally flawed” protests are protected speech on matters of public concern

From the Spring 2011 issue of The News Media & The Law, page 24.

The First Amendment protects angry, anti-gay protests at the funerals of fallen soldiers, the U.S. Supreme Court concluded in March, when it ruled against a grieving family member in a controversial case that tested “the mettle of even the most ardent free speech advocates.”

The Court held 8-1 in Snyder v. Phelps that free-speech rights trumped the privacy concerns of a father whose Marine son’s funeral was the target of Westboro (Kan.) Baptist Church’s message that American deaths in the Iraq and Afghanistan wars are the result of the country’s tolerance of homosexuality.

Led by pastor Fred Phelps, Westboro Baptist Church members regularly picket military and other high-profile political funerals nationwide, displaying placards bearing messages such as “God Hates the USA/Thank God for 9/11” and “Semper Fi Fags.” In March 2006, they gathered outside the Westminster, Md., Catholic church where the funeral of Marine Lance Cpl. Matthew Snyder, who died in Iraq in the line of duty, was held.

A Maryland jury awarded Snyder’s father, Albert Snyder, more than $10 million in damages, which the U.S. Court of Appeals in Richmond (4th Cir.) overturned on First Amendment grounds. Snyder claimed his son’s funeral was a private matter and not one of public discourse.

“What we are talking about is a private funeral,” his lawyer, Sean Summers, told the Court during oral arguments in October. “I would hope that the First Amendment wasn’t enacted to allow people to disrupt and harass people at someone else’s private funeral.”

However, as Justice Ruth Bader Ginsburg reminded Summers during oral arguments, in what turned out to be an allusion to the Court’s March 2 opinion, the signs the protestors carried at Snyder’s funeral were the same ones they hoisted at a protest they staged at the state Capitol in Annapolis the same day, an indication that the “You” included on some of them did not target Snyder, who was not gay, personally, but, rather, “the whole rotten society.”

Indeed, the Supreme Court affirmed the appellate court, rejecting Snyder’s claim that the protests addressed purely private matters and amounted to targeted harassment that intentionally inflicted emotional distress; rather, the protests are protected speech on matters of public concern, the Court said.

“While these messages may fall short of refined 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 import,” Chief Justice John Roberts wrote for the majority. “The fact that Westboro spoke in connection with a funeral . . . cannot by itself transform the nature of Westboro’s speech.”

As to the outrageousness requirement for a finding of intentional infliction of emotional distress, the Court noted that “‘[o]utrageousness,’ however, is a highly malleable standard with ‘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,’” quoting the landmark 1988 U.S. Supreme Court case Hustler Magazine, Inc. v. Falwell. “What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.”

In Hustler, the Court held that public officials and figures cannot recover damages for intentional infliction of emotional distress, at least not without a finding that the publisher acted with knowing falsity, or reckless disregard for the truth or falsity of the statement.

The Snyder Court also held that funeral-goers were not a “captive audience” to Westboro’s speech, an essential element to Snyder’s invasion of privacy by intrusion upon seclusion claim, noting that church members conducted the picketing 1,000 feet from the church, out of sight of those inside.

“Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself,” the Court said, adding that the “captive audience” doctrine is “only sparingly” applied to protect unwilling listeners from protected speech.

Justice Samuel Alito dissented, arguing that church members “brutally attacked” Matthew Snyder in a manner certain to inflict emotional injury as part of a “well-practiced strategy for attracting public attention.”

“Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right . . . The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder.”

The majority emphasized the narrowness of its holding, noting that it is limited to the particular facts of this case, which involved a church that many Americans might feel is “morally flawed.”

“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,” Roberts wrote in the majority opinion. “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.”

The Reporters Committee for Freedom of the Press and 21 news media organizations filed a friend-of-the-court brief in support of the First Amendment interests.

A ruling in favor of Snyder would “threaten to expand dramatically the risk of liability for news media coverage and commentary,” the brief said. Although “this case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant,” its facts should not be used to fashion a First Amendment exemption for offensive speech, the brief argued.

Robert Corn-Revere, the Washington, D.C., media lawyer who authored the Reporters Committee’s brief, said shortly after the opinion was released that it is important for media groups because it does not erode the protection afforded in Hustler v. Falwell. Indeed, Hustler’s holding that speech about public officials or figures cannot give rise to emotional distress claims seemingly now extends to speech about issues of public concern, even if highly controversial, he said.