By Mickey H. Osterreicher, NPPA General Counsel
This morning the U.S. Supreme Court issued an 8-1 decision in Snyder v. Phelps, holding that the First Amendment shields Westboro Baptist church protesters â€œfrom tort liability for its picketingâ€ of Marine Lance Corporal Matthew Snyderâ€™s funeral after he was killed in Iraq in 2006. It was a case that found media groups (including NPPA) having the dubious duty of filing an amicus brief supporting the protesters First Amendment rights no matter how distasteful/abhorrent the message.
The case arose when some of the congregants of the Westboro Baptist Church, who have picketed military funerals for over 20 years based upon the belief that G-d hates the United States for its tolerance of homosexuality, particularly in the military, went to Maryland to voice their protest. According to the record, â€œthe picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers.â€ The picketers peacefully displayed signs containing various condemnations prior to the funeral where Matthew Snyderâ€™s father, who is the petitioner in this case allegedly â€œsaw the tops of the picketersâ€™ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.â€
The elder Snyder then filed a federal suit alleging among other things â€œstate tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.â€ A jury found Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro appealed. The lower court reduced the punitive damages award, but let the remainder of the verdict stand. On appeal the Fourth Circuit reversed, finding that â€œWestboroâ€™s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.â€
Attorney Marjorie Phelps, daughter of Westboro Baptist Church Pastor Fred Phelps, on the steps of the U.S. Supreme Court moments after arguing the case on behalf of her church. Photo by Mickey Osterreicher.
In the opinion, written by Chief Justice Roberts, the Court found that the First Amendment insulated the protesters actions from the Snyder’s claims for intentional infliction of emotional distress; that the claim for intrusion upon seclusion was not supported by the facts where the protesters did not cause any â€œinterference with the funeral itself;â€ and, because those two claims failed there could be no claim for civil conspiracy.
What is important to note is that the case was decided along its limited facts concerning the actual protest at the funeral, declining to address the issue of an allegedly hurtful Internet posting on the churchâ€™s website, found by Snyder after the funeral.
Chief Justice Roberts also noted in the opinion â€œ[g]iven that Westboroâ€™s speech was at a public place on a matter of public concern, that speech is entitled to â€˜special protectionâ€™ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.â€
The Court pointedly stated, â€œWestboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboroâ€™s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyderâ€™s funeral, but did not itself disrupt that funeral, and Westboroâ€™s choice to conduct its picketing at that time and place did not alter the nature of its speech.â€
The Chief Justice concluded â€œ[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and â€” as it did here â€” inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course â€” to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.â€
Justice Breyer filed a concurring opinion acknowledging the limitations of the Courtâ€™s holding that it did not protect all activity focused on matters of public concern. Justice Alito was alone in his dissent, writing that â€œ[o]ur profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.â€
In an amicus brief, the NPPA along with 21 other news organizations argued that â€œfar more is at stake in this case than the ability of the Westboro Baptist Church to protest near military funerals. This case concerns an issue critical to a wide range of speakers, including members of the news media: whether a plaintiff may recover for intrusion and intentional infliction of emotional distress where the harm is based upon the publication of controversial speech about matters of public concern.â€
Robert Corn-Revere of Davis Wright Tremaine LLP in Washington, D.C. drafted the amicus brief on behalf of the media.
The brief further noted that â€œ[m]ost reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful.â€ â€œWithout a doubt, the churchâ€™s message of intolerance is deeply offensive to many, and especially so to gay Americans, Catholics, veterans, and the families of those who sacrificed their lives defending the United States. But to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendmentâ€™s most basic precepts.â€ As an expression of the conflict inherent in this case the brief stated â€œ[t]his case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant. However, the particular facts of this case should not be used to fashion a First Amendment exemption for offensive speech.â€
Mickey Osterreicher signed onto the amicus brief on behalf of the NPPA and attended the oral argument held before the High Court on October 6, 2010.