Occasionally, the law runs afoul of common sense. More often than not, especially with regards to constitutional issues, it does so for a reason.
Today’s decision from the United States Supreme Court in Snyder v. Phelps is one of those cases. As painful as it may be to swallow, the constitutional protections set forth by our founders stand, and stand for good reason.
By now, everyone knows the backstory. If not, a piece by Fox News provides some of the background. An excerpt:
In the days leading up to the funeral, Westboro parishioners, including Fred Phelps, notified local authorities of their intention to picket the service. They were kept 1,000 feet away from the church and because of the use of an alternative entrance for church-goers there was no disruption to the memorial.
Seven protestors held numerous signs including some that read, “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell.” There were no arrests.
Snyder filed a lawsuit against Phelps based on the protest and a subsequent post on the Westboro website about his son.
A jury awarded Snyder nearly $11 million in damages for the intentional infliction of emotional distress and invasion of privacy. That award was later cut in half and then the Fourth Circuit U.S. Court of Appeals set aside the decision in its entirety ruling that the protests were absolutely protected by the First Amendment.
A prima facie case of Intentional Infliction of Emotional Distress in a civil tort action requires that a plaintiff show (i) outrageous and extreme conduct by a defendant, and (ii) damages. To show damages, physical injury is not required and, indeed, substantial emotional injury could be enough. As for the first prong, outrageous and extreme conduct is just that–outrageous and extreme–and is looked upon subjectively. Saying in the context of a regular conversation that somebody’s wife or mother is a “whore,” for example, may be extreme and outrageous to some, but the standard is likely better satisfied by shouting the same message to the wife or mother’s face during a church service or something.
In the case of the Westboro Baptist Church, there is no doubt in my mind that the conduct of Fred Phelps and his sick family and friends would be deemed extreme and outrageous, and there is likewise little doubt that the Snyder family would have sustained substantial emotional injury. Even the eight Justices who found in favor of Westboro Baptist acknowledged that the speech was hateful and harmful. The problem here is that the eight Justices found the speech to be protected by the First Amendment, and if we learned anything from Jerry Falwell’s disco dance with Larry Flynt in the late 1980s, we learned that the constitutional protection of speech serves as a defense against actions in tort.
Acknowledging that the hateful speech promulgated by Fred Phelps and his church falls squarely in the public domain–as Chief Justice John Roberts points out, the speech is not directed at the Snyder family so much as the Snyder family’s funeral provides a mechanism by which the church may convey its ideas and ideals as a whole–those of us who bristle at the very mention of the Fairness Doctrine should understand that the First Amendment stands to protect those who enter into the public debate regardless of the content of their speech.
Of course, disappointment in the ruling today is inevitable. What the Westboro Baptist freaks do is just so wrong. Certainly, it must be unworthy of constitutional protection, right?
Justice Alito’s argument that Albert Snyder is a private person and funerals are inherently private gatherings hosted by necessity on public grounds certainly make sense, as does his contention that they could have protested in a nearly limitless number of places across the country, but as it stands there is little in the actions of Westboro Baptist, however despicable, that would characterize the conduct and statements and signs as being directed at Snyder or his family. Indeed, some of the signs say “God Hates Fags,” but Matthew Snyder was not homosexual. Matthew Snyder and his funeral merely served as a mechanism by which the Phelps crew could attract the most public attention to their views, just as they have done with hundreds of other funeral services, including murdered Auburn student Lauren Burke (whose killer was just today sentenced to death) and the victims of the Tucson, Arizona shootings from earlier this year.
Justice Alito also points out that Westboro Baptist has a number of different mechanisms by which it could disseminate its message, including leaflets, petitions, videos, and more. And, indeed, any effort by the federal government to restrict speech in a public forum must be narrowly tailored to serve an important government interest, and must not unreasonably limit alternative channels to communication. As I understand it, however, the constitutionality of the Maryland law restricting the protesting of military funerals was not an issue, as the law was not in place at the time. At issue was whether protected speech could facilitate tort liability.
More compelling, I think, was Justice Alito’s argument that the actions, conduct and speech of the Westboro Baptist sickos fit into categories of speech left unprotected by the First Amendment and, therefore, tort liability could attach. Speech left unprotected includes speech which incites imminent lawless action, fighting words, defamatory speech, misleading or fraudulent commercial speech, and obscenity. While the fighting words exception may not apply, certainly the speech may have been considered defamatory, and absolutely could be considered patently offensive.
Freedom Alliance, a military non-profit that works to support service members and their families, issued the following statement:
In their ruling on Snyder v. Phelps, eight Justices of the Supreme Court got it wrong. Their decision allows hateful and repugnant behavior to continue to desecrate the solemnity of heroes’ funerals.
For most Americans, a funeral service is a religious event. It is a private affair, a solemn occasion, a family matter. The Court’s ruling wrongly elevates the right of free speech over the right to the free exercise of religion, and denies the family the opportunity to peacefully and privately say good-bye to their loved one before committing their soul to God.
The protestors of Westboro Baptist Church have an unlimited ability to make their voices heard. They can publish leaflets; post their hate on the Internet; and issue press releases by the hundreds. In no way are their First Amendment rights infringed by refusing them access to a private and solemn occasion such as a funeral.
By contrast, for families of fallen military heroes, the funeral is their one opportunity to gather friends and family to join them in prayer; to help them mourn and grieve. That tradition and that right can’t be restored to them once it destroyed by hate mongers.
In my heart, on a personal level with regard to the Snyder family, and considering the amount of love and respect I have for all servicemembers and their families, I understand and agree. Considering the big picture, however, more needs to be taken into account.
As difficult as coming down alongside the eight Justices who ruled in favor of Westboro Baptist may be, I have serious reservations when it comes to attaching tort liability to constitutionally protected speech, whether it be for defamation, intentional infliction of emotional distress, or anything else. Fred Phelps and his disciples are the worst form of human trash, but in a day and age when Rush Limbaugh is deemed a traitor and advocates of a limited federal government are characterized as “enemies” by the president of the United States himself, I shudder at the long-term consequences of any judgment other than the one passed along today.
ADDITIONAL NOTE: As much as I am in favor of a “loser pays” approach to legal action, it makes me sick to my stomach that the Snyder family could be responsible for paying more than $100,000 in attorney’s fees compiled by Westboro Baptist. It makes me sick that the Snyder family would essentially be left paying for the very conduct that caused them so much pain. Therefore, as soon as I know of a fund designed to take care of that cost for the Snyders, I will not only contribute but will spread the word here as well.