First Amendent prevails over family's privacy at funeral

The U.S. Constitution protects angry, anti-gay protests at the funerals of fallen soldiers, the U.S. Supreme Court ruled Wednesday in a controversial case that pitted free-speech rights against the privacy of grieving family members.

The Court ruled 8-1 in Snyder v. Phelps that First Amendment principles 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.

The Court acknowledged that the protests are protected speech on matters of public concern, rejecting Albert Synder’s claim that they addressed purely private matters and amounted to targeted harassment that intentionally inflicted emotional distress as he mourned the death of his son, Lance Cpl. Matthew Snyder, who died in Iraq in the line of duty in 2006. A Maryland jury awarded Albert Synder more than $10 million in damages, which the U.S. Court of Appeals in Richmond (4th Cir.) overturned on First Amendment grounds.

“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, referring to placards with messages such as “God Hates the USA/Thank God for 9/11” and “Semper Fi Fags” that church members, led by pastor Fred Phelps, hoisted outside the Westminster, Md., Catholic church where Synder’s funeral was held.

“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 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 Albert 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.

“Synder 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 from the opinion, 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 said 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.”

Bob Corn-Revere, the Washington, D.C., media lawyer who authored the friend-of-the-court brief submitted by The Reporters Committee for Freedom of the Press and 21 news media organizations in support of respondents in this case, said this opinion is important for media groups because it does not erode the protection afforded in Hustler v. Falwell — that speech about public officials or figures, and, now, speech about issues of public concern, cannot give rise to emotional distress claims.

Moreover, “this case is showing a trend in the Roberts Court of strong First Amendment opinions,” he said.