Snyder v. Phelps: When Right Feels Wrong

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.



  1. John Feeny says:

    According to O’Reilly, he’s going to foot the entire bill. If there’s anything else that needs to be done, keep us posted.

  2. Sam says:

    ‘Baptists’, my butt. They disgrace an entire denomination, no, an entire theology. I will donate.

  3. Bob Upton says:

    Reading the Bill Of Rights leads anyone with a shred of common sense to see that the enumerated rights are listed to protect people from an over-reaching and tyrannical government by limiting the government’s power and influence in these areas. Our government has crossed those limits many times, with many laws, rulings and regulations.We, the people, should reverse that trend.

    Historical context, and the writings of the Constitution’s framers, give no indication that those governmental limits also give individuals a license to overstep the bounds of common decency,societal mores and long held traditions. People are using the Constitution as a weapon against others when it was meant to be a shield from the government. Then they hide behind the same Constitution they have just misused and disrespected.

    If people in the Framer’s time had “protested” like the Westboro Wackos are doing at, let’s say, Thomas Jefferson’s or John Adam’s funerals would they feel as “protected” as they do now? I think not!
    Nor should they today.

  4. Gail B. says:

    Westboro tried the same thing at the funeral of Elizabeth Edwards, but there were so many anti-protesters there that Westboro could not ain a “foothold” in the line of publicity.

    I personally think that Westboro Baptist Church is a shame and a disgrace to the Baptist denomination.

  5. Ssgt Guiterrez says:

    I respect that jury.

    And, respectfully, I disagreee with the 8 Justices and you Mr. Schreiber. Not only should theese cool-aid drinking, purple sneaker wearing inbreds be shut down — they ought to get on the hale bop express and go straight to Kyber Pass. Hijacking a funeral is OK because the speech isn’t illegal? If a son dies serving their country — the military owes the family a peaceful burial. Usurping peace is the same as stealing from me in my house. And, BTW, my house contains a 1000′ curtilege.

  6. Dean says:

    Great explanation! Unfortunately for us out here in the hinterlands, we will continue to be saddled with “activist” judges (both conservative and liberal) who feel they must “interpret” the Constitution instead of enforcing its dictates. The original intent of the Constitution was, as you said, to protect the citizenry from the government. NO ONE who does his research can find any writings by the framers of the Constitution that would allow such far afield “interpretations” as pertains to relations between individual citizens. What the Congress can’t enact, the Court will interpret into being.

  7. L. Banks says:

    It seems that the Westboro Churh has a misplaced sense of protesting. Perhaps they would like it if the rest of us went to their church on worship day and protested them. I think this ruling will set off something far worse than they intended. Though I agree in principal with you Jeff, I do not feel the Supreme Court did the Westbor Wackos any favors.

  8. Dr.Dr. says:

    Why don’t a bunch of people just get together and picket the the church involved? If they were down the street from me, that’s what I would do. Then maybe take out an add against the church in the local paper advocating boycott of the church and parishoners involved — all actibvites protected by free speech.

  9. Randy Wills says:

    Thanks, Jeff, for your balanced and inciteful commentary on the Westboro Baptist Church decision. As disgusting as their behavior is, I have to agree with the Supreme Court. Once we start circumscibing “free speech” to accomodate presonal perspectives, whether it be religious or political, we may well, at some point in the future, find ourselves in a position not unlike Christians in many Islamic venues.

    As a Christian, it was with the utmost revulsion that I watched Chris Wallace’s interview earlier today with the daughter of Fred Phelps, who argued the case before the Supreme Court. Cults and false religions, the Westboro Baptist Church among others, have capitalized on the name of Jesus Christ to cynically provide a cover of spiritual credibility while failing to observe Jesus’ own words. In this case the first to come to mind would be to “judge not lest ye likewise be judged”.


  10. Randy Wills says:

    Hmmm. I think that the correct word in the above context would be “insightful”, although your words often are meant to “stir things up” or “incite” the reader to action.

    Did I wiggle out of that careless faux pas?


  11. Mommas, Don't Let Your Babies says:

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