By: Derek Jiang
Introduction
As Justice Harlan once wrote, the “constitutional right of free expression is powerful medicine in a society as diverse and populous as ours” and produces “a more capable citizenry and more perfect polity.” Grounded in the First Amendment, the freedom of speech is a cornerstone of our country and allows society to engage in robust debate over important issues in the great experiment that is democracy. However, no freedom is absolute, and this includes the freedom of speech. From the incitement of “imminent lawless action” to “falsely shouting fire in a theater,” the Court has long recognized that the First Amendment does not protect certain classes of unprotected speech., While it is generally agreed upon that there are some situations where speech can and must be curtailed, the precise limits of the First Amendment are not always so well-defined. One such case in the First Amendment’s “gray area”—testing the limits of freedom of speech—is Snyder v. Phelps (2011).
In Snyder, members of the Westboro Baptist Church were sued for millions of dollars in damages after picketing the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The church members, believing that “God hates and punishes the United States for its tolerance of homosexuality” in the military, carried signs such as “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” “God Hates Fags,” “Fags Doom Nations,” “You’re Going to Hell,” and “God Hates You.”
Although the picketing was peaceful, complied with guidance from local law enforcement, and took place on public land “approximately 1,000 feet from the church where the funeral was held,” Albert Snyder—Lance Corporal Snyder’s father—was nonetheless scarred by Westboro’s offensive messages. Unable to “separate the thought of his dead son from his thoughts of Westboro’s picketing,” Albert Snyder suffered lasting emotional injury in the form of severe depression and even became physically ill from the painful anguish. He later sued Westboro for the “intentional infliction of emotional distress” (IIED) and was awarded $2.1 million by the District Court. Westboro appealed, and the Supreme Court eventually reversed, holding that the First Amendment “shields Westboro from… liability for its picketing in this case.” Thus, despite conceding that their behavior was “so outrageous in character… as to go beyond all possible bounds of decency,” Westboro Church did not have to pay one penny for the wounds they burned into the Snyder family.
Ultimately, Snyder v. Phelps likely safeguarded free speech in a case where protection was unnecessary and unwarranted. However, the Court’s decision is consistent with the expansive nature of the First Amendment—and ensures democracy and freedom of conscience survive.
The Decision
In an 8-1 decision, Chief Justice John Roberts wrote that Westboro cannot be sued for intentional infliction of emotional distress because the First Amendment protects speech on “matters of public concern,” including Westboro’s picketing in this case.
A functioning democracy requires “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” As such, speech on matters of public concern lies “at the heart of the First Amendment’s protection” and occupies the “highest rung of the hierarchy of First Amendment values,” deserving “special protection.”, After all, without a meaningful dialogue of ideas in our public discourse, how could self-government “of the people, by the people, [and] for the people” exist?
Thus, whether the First Amendment protects Westboro’s picketing in this case turns on “whether that speech is of public or private concern, as determined by all of the circumstances of the case.” Although what qualifies as public or private speech is “not well defined,” the Court has held that speech deals with matters of public concern when it relates “to any matter of political, social, or other concern to the community.” Here, analyzing the “content, form, and context” of Westboro’s speech in its totality, the Court found that Westboro’s messages “plainly relates to broad issues of interest to society at large.” For example, its signs that read “Fag Troops” and “Fags Doom Nations” highlighted the church’s opposition to homosexuality in the military and were—in part—a reaction to congressional efforts to overturn “Don’t ask, don’t tell” (DADT). Similarly, placards which displayed “Priests Rape Boys” and “Pope in Hell” spoke to scandals involving the Catholic clergy. In the Court’s view, the fact that Westboro chose to speak “in connection with a funeral” and had a few signs that targeted the Snyders (such as “You’re Going to Hell”) did not transform “the overall thrust and dominant theme” of Westboro’s demonstration. Tackling broad issues of the moral conduct of our Nation, Westboro addressed matters of public concern at a public place. Therefore, consistent with other precedents protecting speech by citizens on matters of public concern (see Pickering v. Bd. of Educ. (1968), Rankin v. McPherson (1987),, and Lane v. Franks (2014)), the First Amendment protects Westboro’s speech in this case, even if it was “insulting and… outrageous.”,
However, the Chief’s reasoning did not persuade all members of the Court. In his lone dissent, Justice Alito forcefully argues the First Amendment does not give Westboro a free pass to “brutalize Mr. Snyder.” Noting that Westboro’s “vicious verbal assault” clearly amounted to “intentional infliction of emotional distress,” Justice Alito states that the First Amendment does not require nor allow the “brutalization of innocent victims… at a time of acute emotional vulnerability.” Having suffered incalculable loss and irreparable injury, the Snyders deserved to recover from Westboro’s outrageous conduct, regardless of whether the speech was related to matters of public concern. And although Justice Alito was unable to convince any of his colleagues at the time to join his dissent, he did receive support from retired Justice John Paul Stevens, who “told the Federal Bar Council he ‘would have joined [Justice Alito’s] powerful dissent.’”
Protection Gone too Far
Justice Alito may have been right to say that the Court’s decision in Snyder extended free speech protections too far.
First, the majority’s contention that Westboro’s speech was primarily “commentary on matters of public concern” is debatable. Like protesting at a private individual’s wedding or their personal home, picketing Matthew Snyder’s funeral is most naturally seen as a targeted and specific attack on the individual. A reasonable bystander would assume “that there was a connection between the messages on the placards and the deceased.” For example, signs that read “God Hates You” and “You’re Going to Hell” at the church funeral would likely have been interpreted “as referring to God’s judgment of the deceased.” “Thank God for Dead Soldiers” conveys the idea that God had caused Matthew’s death “in retribution for his sins,” and “God Hates Fags” and “Fag Troops” falsely suggest that Matthew was homosexual. Even Westboro’s press releases before and after the funeral targeted Snyder, from stating “he died in shame” for his “evil, wicked, and sinful manner of life” to blaming Matthew’s parents for “[raising] him for the devil” and “[ripping] his body apart.” Rather than “plainly [relating] to broad issues of interest to society,” most, if not all, of Westboro’s speech could easily be interpreted as direct attacks on Matthew Snyder, accusing him of being gay, a sinful Catholic, and deserving of death and punishment. The level of personalized vitriol went “far beyond commentary on matters of public concern.”,
Second, even if Westboro’s speech primarily spoke to broad public issues—which is the Court’s conclusion despite being quite inaccurate—that alone should not immunize Westboro from liability. After all, if a politician on national television began openly defaming his political opponent with actual malice, leaking confidential national security secrets, or exposing the protected intellectual property of a small business, they would be held liable, regardless of whether they were partly addressing “matters of public concern.” Here, Westboro all but conceded that their conduct satisfied the “rigorous and difficult to satisfy” requirements of IIED. Having inflicted “wounds truly severe and incapable of healing themselves” through conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,” Westboro should not be shielded from liability simply because their intentional infliction of emotional distress was also interspersed with some speech on matters of public concern.
Third, holding Westboro liable in this case would not “stifle public debate,” as the majority claims. After all, the First Amendment “ensures that [Westboro has] almost limitless opportunities to express their views.” They may write books, pamphlets, blogs, e-mails, and Internet articles; they may create petitions, videos, and audios; they may speak their message at any public forum and at any private venue willing to accommodate them; they may appear on the radio, on TV, and online; and they may protest at countless locations, from the U.S. Capitol and the Pentagon to any public road where pedestrians pass, any of America’s 20,000+ public parks, and any of the nearly 19,000 Catholic churches in our country. It does not undermine public debate on major issues for private individuals to have a few hours to bury their dead son in peace. Furthermore, although Westboro might beg to differ, the Court has previously held that “personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.” Robust and open debate on political issues does not require—and is not enhanced by—abuse and harassment.
Fourth, letting Westboro off the hook in this case only emboldens Westboro to engage in similarly shocking and offensive acts in the future without any consequences. Having successfully hidden behind the defense of the First Amendment in this case, Westboro has no incentive to stop assaulting other people when they are at their most vulnerable. Indeed, after Snyder’s funeral, Westboro announced they were going to picket the funeral of Christina-Taylor Green, a 9-year-old girl killed in a horrific mass shooting in Tucson, “proclaiming that she was ‘better off dead.’” Unfortunately, due the Court’s unwillingness to stop their malicious and targeted media-seeking strategy, Westboro will continue to inflict grave and lasting emotional injury “on an ever growing list of innocent victims.”
The First Amendment protects vigorous and intense debate on public issues, even speech that may be controversial, vehement, and hurtful. It does not follow, however, that such debate requires the intentional brutalization of people’s lives in their most sensitive moments.
Prophylaxis and The Expansive Nature of Free Speech
So why does the Court endorse Snyder’s suffering? The answer lies partly in a legal principle known as prophylaxis—a judicial doctrine that overprotects a constitutional right in order to fully “safeguard… [and] improve detection of violations of that right.”
Prophylaxis exists because “courts frequently cannot determine with much certainty whether or not a constitutional right has occurred in a given case” and often disagree about a particular right’s scope (as in this case). By giving greater protection to individuals than such right may abstractly seem to require—thereby protecting free speech in many “close” or “gray area” cases—the Court ensures no constitutional violation “slips through the cracks” unnoticed. In other words, by protecting speech even in the most extreme cases, the Court ensures less controversial speech that genuinely contributes to our public discourse is not censored.
In Snyder’s case, the jury “was instructed that it could hold Westboro liable for intentional infliction of emotional distress” if, among other things, it found that their picketing was “outrageous.” However, “outrageousness” is “a highly malleable standard” often influenced by the subjective biases and beliefs of each individual. For example, consider a local labor union protesting poor working conditions and low wages outside business headquarters while on strike, or pro-life protesters peacefully picketing near an abortion clinic while patients enter and leave., While both activities are well-understood to be protected by the First Amendment, it would not be difficult to imagine a sympathetic pro-business or pro-choice jury, respectively, finding that such demonstrations intentionally inflicted irreparable emotional harm and amounted to “outrageous,” unacceptable behavior. Had the Court ruled against Westboro, it is possible that in future cases, other speech involving “vehement, caustic, and sometimes unpleasant” expression would be suppressed. After all, people may be afraid to vocally raise their opinions on political matters if they fear retaliation, and if there is any doubt they may be punished for their speech, speech on matters of public concern may be chilled. The Court writes bluntly that “such a risk is unacceptable.” In public debate, we “must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”
The Court’s overprotection of free speech in Snyder is thus consistent with other precedents protecting “insulting, and even outrageous, speech.” Some of these precedents may seem innocent and even silly, such as protecting the right to burn the American flag in protest,, the right to lie about having earned a military medal, and the right to wear a “Fuck the Draft” jacket in public. However, others are more serious, from allowing neo-Nazis to wear swastikas as they terrorized a Jewish town to permitting a divorcee to post lyrics threatening to murder his ex-wife., As the Court wrote in the flag-burning case, if “there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The Court’s decision to protect Westboro’s speech was undoubtedly upsetting to many—and likely went beyond what was necessary to protect public debate on important issues. However, the entire point of the First Amendment is not to protect speech that is agreeable and widely accepted, but to shield “those choices of content that in someone’s eyes are misguided, or even hurtful.” By vigorously overprotecting speech even when it “[inflicts] great pain,” the Court continues in its tradition of preserving the expansive nature of the First Amendment—and through prophylaxis, minimizes the chance that speech on public issues will ever be restricted.
Conclusion and Ideals
Speech is powerful. It fosters diversity and freedom of thought, allowing us to develop an independent perspective on the world through exposure to different ideas and experiences. It safeguards freedom of conscience and identity, empowering us to express ourselves and our beliefs as we seek to live our lives to the truest. It forms the bedrock of democracy itself, ensuring that “the people may freely receive information… on matters of public interest and the action of government officials” as they debate with each other and cast their ballots. And it guarantees new ideas “that are the essential engine of social progress” are not stifled by government censorship, control of ideas, and forced uniformity.
Yet that same power which saves democracy and freedom of conscience also has the ability to do great damage. In the midst of the verbal tumult and discord that often accompanies free speech, innocent and good-hearted people may be annoyed, offended, and—as was the case here—seriously wounded. It is tempting and perhaps even logical and righteous to punish the speaker for the deep pain and suffering they inflict on others. However, we as a Nation have charted a different course: “to protect even hurtful speech on public issues”—sometimes when it is unnecessary and unwarranted—“to ensure we do not stifle public debate.” That course—along with the overarching ideals and principles of the First Amendment—shields Westboro from liability.
The Court has not always so vigorously protected free speech as it does today. From failing to strike down the Alien and Sedition Acts (1798) to green-lighting the censorship of communist sympathizers during the Red Scare, our Nation’s record on free speech is far from spotless. It is said that those who do not learn from history are doomed to repeat it, and the modern Court has gone to great lengths not to repeat the mistakes of the past.