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Supreme Court: Westboro Baptist Church Funeral Protests Are Protected Speech

With the possible exception of the Nazis who wanted to march through the streets of a predominantly Jewish community in Illinois 35 years ago, there have been few First Amendment issues to come before the Supreme Court where the persons claiming the protection of the Constitution were more offensive than the Westboro Baptist Church. Since soldiers began dying in Afghanistan and Iraq, the group has risen to national ignominy with their protests outside of funerals carrying signs saying that America’s soldiers were dying because of the nation’s tolerance of homosexuality (I’m putting it far nicer than they do, obviously). Several years ago, they came to the funeral of  Marine Lance Cpl. Matthew Snyder, who had died in Iraq.

Snyder’s father, however, wasn’t going to take the WBC protests lightly. He sued them for Intentional Infliction of Emotional Distress, and won a jury trial in Federal District Court. That jury verdict was overturned by the Court of Appeals, however, which held that the church’s First Amendment rights to protest on public property trumped whatever claims Snyder may have that he was offended by the protest. Today, the Supreme Court of the United States sided with the Court of Appeal and ruled, once again, that offensive speech deserves protection under the First Amendment:

WASHINGTON — The First Amendment protects hateful protests at military funerals, the Supreme Court ruled on Wednesday in an 8-1 decision.

“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

(…)

Chief Justice Roberts wrote in the ruling that three factors required a ruling in favor of the church group. First, he said, its speech was on matters of public concern. While the messages on the signs carried by its members “may fall short of refined commentary,” the chief justice wrote, “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.”

Second, he wrote, the relationship between the church and the Snyders was not a private grudge.

Third, the members of the church “had the right to be where they were.” They were picketing on a public street 1,000 feet from the site of the funeral, they complied with the law and with instructions from the police, and they protested quietly and without violence.

Chief Justice Roberts suggested that the proper response to hurtful protests are general laws creating buffer zones around funerals and the like, rather than empowering of juries to punish unpopular speech.

The opinion acknowledged that “Westboro’s choice added to Mr. Snyder’s already incalculable grief” and emphasized that the ruling was narrow and limited to the kinds of protests staged by the church.

Justice Stephen G. Breyer joined the majority opinion but wrote separately to say that other sorts of speech, including television broadcasts and Internet postings, might warrant different treatment.

It strikes me that Roberts is largely correct here, and we’re likely to see a host of jurisdictions enact legislation to try to establish the “buffer zones” that Roberts speaks of. However, even there, the First Amendment suggests that the Church should be permitted to protest so long as it is not directing its message directly at specific individuals. Case law on so-called time, place, and manner regulations on speech make it clear, basically, that the regulations must be reasonable and that they must not be so overly broad as to constitute a bar on speech itself. A “buffer zone” around a cemetery or funeral home would have to pass some kind of reasonableness test in order to pass Constitutional muster, and a straightforward “no protests near these places while funeral services are going on” strikes me as being overly broad.

Additionally, the “buffer zone” issue is one that impacts more than just the Westboro Baptist Church and military funerals. It has become quite common in recent years to see the establishment of so-called “free speech zones” during events like political party conventions, Presidential speeches, and the like. Typically, these zones are located far away from where the event is taking place, far away from where the press is likely to be, and, of course, far away from where the people at whom the protests are directly are likely to be.  Typically, any protests, outside these “free speech zones” are considered prohibited and the people participating in them are arrested. To my knowledge, none of these zones have ever been tested in Court, but the similarities between the “buffer” that Roberts talks about and this rather obvious attempt to silence speech by making it difficult through time, place, and manner regulations cannot be denied. The Courts need to address these issues, and the need to do so carefully.

Ilya Shapiro does an excellent job of summarizing Roberts’ brief, concise, opinion:

As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.

Moving on to the rest of the opinion, Justice Breyer’s concurrence is short, but it raises some concerns in my mind, if only because of the first paragraph:

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activ-ity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.

Breyer goes on to repeat that his understanding is that the Court’s decision is limited to the facts of this case, and that this is the reason he joins the opinion. However, it’s unclear what he was trying to get at by bringing up television broadcasts and the internet. Is Breyer suggesting that WBC would enjoy less protection if its message were transmitted by these means? Is he suggesting that the Court should find that these forms of communication deserve less protection for some reason? I’ll be interested in seeing the commentary on this one.

Justice Alito was the lone dissenter, and he suggested that the Court should have held that WBC’s speech in this case was so outrageous as to be without any First Amendment protection:

It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton, [1897]  Q. B. 57); see also Restatement (Second) of Torts §46, illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentionalinfliction of emotional distress by means of speech.

This Court has recognized that words may “by their veryutterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury isintentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

The problem with Alito’s reasoning is that, while Chaplinksky may still be good law, it’s bad precedent. As with the protests over cartoon images of Muhammed, or Koran burning , or the so-called “Ground Zero Mosque”, there is no such thing as a Constitutional right to not be offended.  The Westboro Baptist Church’s protest outside Matthew Snyder’s funeral offensive, so were the Nazis who marched through Skokie, Illinois but the mere fact that someone is “offended” ought not be a reason to bar or punish speech. Freedom of speech includes the possibility that someone will be offended, or angered The answer isn’t to ban the offensive speech, it’s to answer it with more speech.

Snyder v. Phelps

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Hello World! says:

    Good! While I hate what they stand for, I am glad I can express that. “The price of freedom is tolerance” -TJ

    Like or Dislike: Thumb up 1 Thumb down 2

  2. John Burgess says:

    I’m making up posters to use when Phelps and his spawn die. I’m thinking of something along the lines of him servicing/being serviced by farm animals. Any other suggestions?

    Like or Dislike: Thumb up 3 Thumb down 0

  3. mantis says:

    We can always count on Jake and Elwood to deal with them.

    Like or Dislike: Thumb up 1 Thumb down 1

  4. michael reynolds says:

    Sometimes the 1st Amendment is a harsh mistress.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. G.A.Phillips says:

    I’m making up posters to use when Phelps and his spawn die. I’m thinking of something along the lines of him servicing/being serviced by farm animals. Any other suggestions?

    Being serviced is to good for them, think raping farm animals, bondage forced on the pet cat and such.

    Like or Dislike: Thumb up 1 Thumb down 1

  6. James Joyner says:

    As I noted back in March when the 4th Circuit ruled the same way, I think Phelps et. al. have legitimate 1st Amendment rights here.

    But the Chaplinski citation is interesting. Why don’t the signs Phelps and company carry and the epithets they shout amount to fighting words?

    I do think the better answer here is to declare no-picketing zones around funerals. I think such a time, place, and manner restriction would survive judicial scrutiny. The speech isn’t diminished by such a reasonable limitation and the emotional harm saved would be a significant public policy interest.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. PD Shaw says:

    Please let Breyer be suggesting that the government has a legitimate interest, if not a duty, to stop the planned reality show, House of Phelps, where each week a guest star (Charlie Sheen, Rosie O’Donnell, Snooki . . .) spend a weekend with the Phelps Klan.

    Americans are too weak to look away, we need Big Brother.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. Why don’t the signs Phelps and company carry and the epithets they shout amount to fighting words?

    Mostly because, Alito’s dissent notwithstanding, the factual findings at the trial (which the appeals courts are bound by except in extreme circumstances) concluded that WBC’s speech was not directed at Snyder individually but were meant to convey a general message. Chaplinsky would generally be limited to “fighting words” specifically directed to an individual and mean to provoke a reaction.

    I do think the better answer here is to declare no-picketing zones around funerals.

    I don’t disagree, but as I said in the post I think the Court has to be careful when it deals with those restrictions. The “free speech zones” are just one example of how a time, place, and manner regulation can become unduly restrictive.

    Like or Dislike: Thumb up 2 Thumb down 0

  9. I do think the better answer here is to declare no-picketing zones around funerals. I think such a time, place, and manner restriction would survive judicial scrutiny.

    The ruling explicitly permits such restrictions. But the Phelps were obeying all such legal restrictions that were currently in place. What the court prevented is setting up restrictions, then suing people obeying the restrictions because they still managed to upset someone.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. Alex Knapp says:

    The “free speech zones” are just one example of how a time, place, and manner regulation can become unduly restrictive.

    Amen to that. The FSZs are beyond absurd.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. michael reynolds says:

    PD:

    We need a Kardashian amendment

    Like or Dislike: Thumb up 1 Thumb down 1

  12. PD Shaw says:

    I just read the synopsis, not the whole opinion, but it says that the deceased’s father could see the tops of the signs as he approached the site, but did not know what the signs said until he saw it on the nightly news. That suggests the Phelps were in a relatively remote location, and the dad at least wasn’t confronted directly with this nonsense.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. mantis says:

    If God exists, why does he tolerate people like Phelps and his algonquin roundtable of shitheads?

    Like or Dislike: Thumb up 1 Thumb down 1

  14. James Joyner says:

    @Doug and @Alex:

    Agreed on the absurdity of FSZs. But I do think there are legitimate considerations aside from speech rights, such as disturbance of peace, freedom of movement, etc. I’ve got a tangentially related post in my head that I’ll get up at some point.

    @Stormy Dragon and @PD Shaw:

    I’m mostly going off memory of other Phelps activities. If they were far enough away as to not be harassing the funeral party, merely annoying on account of their message, then it’s a pure free speech issue. I only think regulation reasonable when the proverbial swinging fist comes close to the proverbial nose.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. rodney dill says:

    I’m surprised that members of the military or their families don’t travel to Topeka, Kansas, everytime one of the churches congregation members pass, to protest at funerals the there.

    Like or Dislike: Thumb up 1 Thumb down 1

  16. G.A.Phillips says:

    If God exists, why does he tolerate people like Phelps and his algonquin roundtable of shitheads?

    Why you don’t ask Him:) there is a reason why He doesn’t just drown us all again.

    Like or Dislike: Thumb up 1 Thumb down 1

  17. [...] Supreme Court decision finding that the Westboro Baptish Church funeral protests are free speech, which I reluctantly agree with, brings to mind a related issue I’ve been meaning to post [...]

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  18. matt b says:

    Doug wrote:

    Breyer goes on to repeat that his understanding is that the Court’s decision is limited to the facts of this case, and that this is the reason he joins the opinion. However, it’s unclear what he was trying to get at by bringing up television broadcasts and the internet. Is Breyer suggesting that WBC would enjoy less protection if its message were transmitted by these means?

    PD wrote:

    Please let Breyer be suggesting that the government has a legitimate interest, if not a duty, to stop the planned reality show

    While I know a little bit about publishing law IANACL, but I have to wonder, for all the sarcasm, if profit is not part of the issue and the reason for Breyers phrasing. It seems like both are examples of mediums in which lines can potentially blur between protest speech (protected right) and commercial speech (regulations). Could the phrasing be read as an (awkward) attempt to ensure that this isn’t used to fold one into the other?

    Also it occurs to me, that, by the nature of modern broadcast, those medium almost always are assumed to operate across state line (or transmit via federally regulated media). So perhaps the phrasing is to ensure that this doesn’t come into conflict with existing precedent and laws about federal regulation of those media.

    Either way, I’m glad to see the court reached the right decision (I just wish it was for these particular plaintiffs, but as articulated in “A Man for All Seasons”, I’ll always support their right to free speech)

    Like or Dislike: Thumb up 2 Thumb down 0

  19. [...] Supreme Court: Westboro Baptist Church Funeral Protests Are Protected Speech (outsidethebeltway.com) [...]

    Like or Dislike: Thumb up 1 Thumb down 1

  20. John Burgess says:

    ‘Fighting words’ pretty much have to be said to your face, not from behind a police barrier a thousand yards away. It didn’t help Snyder’s case at all that he only learned of the hateful messages being spewed until he saw them later, on TV. I certainly understood ‘tops of signs’ to mean that, i.e., not the messages they contained.

    FWIW, Althouse has launched a supposition that Breyer is preparing the battlefield for upcoming cases on bullying. Worth considering, I guess.

    Like or Dislike: Thumb up 2 Thumb down 0

  21. TG Chicago says:

    …the mere fact that someone is “offended” ought not be a reason to bar or punish speech.

    Doug, I scanned through Alito’s dissent and IANAL, but I didn’t see where he made this claim. I searched for “offended” in the document and didn’t see it in Alito’s dissent. Seems like you might be strawmanning here.

    If I’m reading it right, he’s referring to the IIED tort, which goes way beyond mere offense. I am interested in hearing why Alito was wrong in his interpretation about IIED.

    (I am inclined to agree with the majority, FWIW, but I want to give the dissent a full hearing)

    Like or Dislike: Thumb up 2 Thumb down 0

  22. matt b says:

    FWIW, Althouse has launched a supposition that Breyer is preparing the battlefield for upcoming cases on bullying. Worth considering, I guess.

    Actually, based on a discussion with my wife WIAL, I suspect that this commentor on Athouse’s blog might be right:

    I thought the internet postings in Breyer’s concurrence referred to the “epic” in footnote 1 in the opinion. The respondent followed up his protest at Lance Corporal Matthew Snyder’s funeral with internet postings directed at the Snyder family.

    Alito’s concurrence talks about the epic postings in which the respondent said Lance Corporal Matthew Snyder’s parents taught him to “divorce and to commit adultery” and that their son was burning in hell because they raised him Catholic.

    The “epic” postings, which don’t seem to be protected First Amendment speech, played an important role at the trial, but weren’t mentioned in the cert petition or briefed much by the lawyer for Lance Corporal Matthew Snyder’s father before the Court.

    Given these postings, it certainly was questionable whether the respondent’s funeral protest was on a matter of public concern or was private speech directed at a private figure with a sign saying “You’re Going to Hell.”

    You can read the rest here.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. [...] Supreme Court: Westboro Baptist Church Funeral Protests Are Protected Speech 8 to 1 decision. Outrageous for our military and their families. This decision was made inside a [...]

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  24. Ernieyeball says:

    RD: “I’m surprised that members of the military or their families don’t travel to Topeka, Kansas, everytime one of the churches congregation members pass, to protest at funerals the there.”

    I would like to think it is because folks know this would shine more publicity on these deluded citizens. This is not what some of us are looking for.

    Like or Dislike: Thumb up 1 Thumb down 0

  25. val says:

    Our true God will not throw any child of his into a hell fire. Satan has deceived the whole world Rev 12:9 until a woman delivers Rev 12:5, 13 the true word John 1:1 to the world. Prophecy is fulfilled and is going to the world from the wilderness Rev 12:6 at http://thegoodtale.blogspot.com.
    It never entered the heart or mind of God to do such a thing as throw any child for any sin into a fire Jer 7:31, Jer 19:5. Everyone when they die their body returns to the earth and their spirit returns to God who gave it Eccl 12:7 to await their resurrection to eternal life John 3:16. All will believe in their own order 1 Cor 15:23. Every knee shall bow and every tongue shall confess Rom 14:11. God created Isa 45:7 us all to be against him Rom 8:7 to learn the knowledge of good and evil Gen 3:22 to become a god Ps 82:6. Satan will not win even one child of God. God has all the power, none will perish for eternity. Greater love hath no man then that he lay down his life for his friends John 15:13. Soldiers are risking their lives against other soldiers trying to establish a better world. King David was never punished for all of the soldiers he killed. Everything that happens during earth school is for an eternal reason.
    God (love) never fails. If God were to kill any child of his for eternity he would be a hypocrite Ex 20:13. The true word is delivered.

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  26. Harassment by religious extremist

    Jehovah’s Witnesses instigated court decisions in 1942 which involved cursing a police officer calling him a fascist and to get in your face at the door steps,….this same JW 1942 court decision upheld infamous Phelps hate church in 2011
    —-
    Danny Haszard, More on this group
    http://www.dannyhaszard.com

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  27. [...] military, and scandals involving the Catholic clergy.”‘ See also the New York Times and Outside the Beltway However repulsive the speech, this is a freedom worth upholding. While we may not agree with the [...]

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  28. Tim says:

    The real irony here is that this brave young Marine died to protect the very freedoms a hate group enjoys and uses to disrespect his memory and disrupt his family’s grief. Even though it taste like vinegar to say it, the Supreme Court made the right decision. It ensures our freedoms cannot be erroded based soley on popular opinion. Because of this hero’s sacrafice and countless others we have the right of expression. We cannot
    pick and choose which freedoms are allowed or when appropriate only that they are protected equally for all of us. It is how we put into pratice those rights that is at issue we all need to show moral and social responsibility as well as just plain old decency.

    The Supreme Court decision lets us know this soldier did not die in vain. My grandfather laid along side many others for hours on a cold beach in Normandy under German fire fearing to die at any moment just like so many brave men and women have sacraficed that so I have the life and freedoms that I have. Never will I take these for granted for they came at a high price and just by doing nothing they can so easily be lost.

    I reach out to the gay community it is time for us to step up but NOT to shine a light on any cause we have. This fight is not about us it is about grieving families, fallen heros and protecting the freedoms we have. This is a fight for doing the right thing this is a Matt Shepard. It is time for Fred Phelps to truely see the sword of justice has two sharp edges. He is clever but ignorant and does not uderstand what he has really won with
    this Court ‘victory’.

    I challange every possible available gay and lesbian person to be at all Westboro demostrations encircling the protesters hand in hand sheilding them from the greiving families and respectfully softly singing hymns to drown out hateful shouts. Everytime there is a cult meeting at the Westboro ‘church’ the streets lined with all the drag queens and colorful characters converged greeting them with shouts of love and perhaps little YMCA for the duration of each service. Finally, I wonder how they (Westboro church) will feel when they
    bury one of theirs and face the same protests. Oh and I am certain there is a gay IRS agent that would be happy to reveiw the “church’s” financial records. Karma is a bitch.

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