As many of you know, I have been following the Snyder v. Phelps case for an extremely long period of time. Today, the Supreme Court issued the final word on the issue as to whether the First Amendment protects the Westboro Baptist Church from tort liability stemming from their protests of a fallen Marine’s funeral.
What many of you may not know is that before the ruling today, I was leaning towards the idea that this speech was protected under the First Amendment. In fact, after I read the 4th Circuit opinion in 2009, I was certain the Westboro protests would be upheld by the United State Supreme Court. What I didn’t know is that after reading today’s majority opinion and the dissent by Justice Alito, I would actually change my mind and find the speech by the Westboro Baptist Church not to protected by the First Amendment. In the following paragraphs I will point out exactly why I agree wholeheartedly with Justice Alito.
It is important to first note that our Constitution, Supreme Court, and society as a whole has placed the First Amendment nearly in a league of its own. We especially ensure speech conducted in the public discourse receives special protection under the First Amendment. As the Court points out, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983). Exactly what kind of speech is public or private, however, is not as easy of a distinction as it sounds. In order to determine whether speech is of public or private concern the Court must review the “context, form, and context” of the speech, “as revealed by the whole record.” Id. at 147-8. In other words, the Court needs to look at the totality of the circumstances surrounding the speech communicated to determine its nature.
When looking at the speech in its entirety, the majority opinion makes a tragic flaw by only analyzing the signs as part of the public discourse. As Justice Alito’s dissent points out, Westboro issued a press release announcing they were attending Matt Snyder’s funeral, got as close as they could to the service without actually trespassing, and “launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” The Westboro Baptist Church went far enough in their press release to state how Matthew Snyder “died in shame, not honor.” Beyond that, after the funeral, Westboro Baptist Church wrote an online account, titled “Epic,” that explicitly names Matthew and his parents using language that most certainly is outrageous. See Justice Alito’s dissent for the language of the Epic. Justice Alito appropriately points out “[t]he protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress.” Westboro Baptist Church consciously and deliberately went to the Snyder funeral in an attempt to stir up pain and emotion on behalf of Matthew’s loved ones. When looking at the speech in its entirety, it was “abundantly clear” Westboro Baptist Church went far beyond any form of public commentary and because of this, their speech does not enjoy First Amendment protection normally afforded to speech on public issues.
After ascertaining the speech of Westboro was not protected as public debate, the intentional infliction of emotional distress (IIED) claim becomes quite easy to parse out. The majority opinion explains that In order to win on an IIED claim, the plaintiff must show the defendant “intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.” Did Westboro Baptist Church intentionally go to Matthew Snyder’s funeral and outrageously show signs like “Thank God for 9/11,” ”Semper Fi Fags,” “Thank God for IED’s,” and “God Hates You”? Yes. No one disputes that. No one disputes these signs are outrageous. Second, did Westboro Baptist Church cause Mr. Snyder severe distress? Yes. In fact, experts at trial pointed out how his emotional anguish from the protests has not only caused severe depression, but has also exacerbated his pre-existing health conditions.
Justice Alito’s dissent also appropriately points out that it is not a proper defense that Westboro Baptist Church was standing where the police told them to. One does not have to trespass on another’s property in order for speech to be defamatory or for it to be considered “fighting words.” Imagine the absurdity of a defendant admitting he defamed the plaintiff, but because he said it at the public park his speech was protected. This is not what our First Amendment was meant to protect.
This was a private funeral. After making a press release about Matthew Snyder, Westboro Baptist Church came to and bombarded the area immediately next to the location of the funeral service. They had signs directed at Marines (which Matt Snyder was), signs dealing with roadside bombs (which caused Matthew Snyder’s death), signs thanking God for fallen service members (which Matt Snyder was), and signs saying “You’re Going to Hell” (at Matt Snyder’s funeral, which certainly makes one think the sign was directed at the deceased). After the funeral, Westboro Baptist Church posted an online article again specifically naming the Snyder’s while using degrading remarks towards them, causing great emotional pain to the entire Snyder family.
After looking at the speech in question in its entirety, I do not believe the Westboro Baptist Church’s actions enjoy protection under the First Amendment and would find them liable for damages under the IIED claim. For the reasons above, I join in Justice Alito’s dissent.
I strongly recommend you read Justice Alito’s dissent in its entirety as it is one of the most eloquent dissent’s I have read in quite some time. Here is the opinion for the majority, concurrence, and dissent: http://www.supremecourt.gov/opinions/10pdf/09-751.pdf
Thank you for your perspective on this issue. Before the ruling came down I was of the mind set that this speech was unfortunately protected. However, after reading the dissent, I too was happy to find myself thinking that this speech was not protected. I think that there is an important lesson to be learned in situations like this. Even if the speech is protected, should it be protected to the point that it allows these people to inflict addition pain on others. To me it continues to seem like the church's rights are being valued over the rights of the family. Should any rights really be protected to such an extent that their actions are allowed to infringe on someone else's rights? Maybe. But in this case, I think the court ruled incorrectly.
ReplyDeleteI am with you Scott. They certainly did not view the record as a whole as they claimed. I also have issue with the Time Place and Manner analysis. They seem to have glossed over the time element and that there was a vast amount of alternative times (as well as places) in which Westboro could have chosen to exercise their rights. If this was a matter of public interest then any time that particular day would have sufficed, as well as any other place as Alito points out in his dissent.
ReplyDeleteMy only problem with Alito's dissent is that it is an emotional appeal to reason and not factually based in any legal analysis aside from the 2d Restatement (Torts); it is also devoid of any statute or precedent as well as devoid of any suggestion of setting a new precedent and why. That frustrated me a great deal. Given that he was appointed by George W. Bush who never sited a darn thing in his campaign ads, I'm not surprised but I am disappointed. His argument was good but I feel as if it has no teeth in the legal arena.