Free Speech Protects Funeral Protests

     (CN) – The Westboro Baptist Church was protected by the First Amendment when it picketed the funeral of a Marine killed in Iraq with signs stating, “Thank God for dead soldiers” and “Fag troops,” the Supreme Court ruled on Wednesday. Justice Samuel Alito, alone in his dissent, condemned the church, which he said should not be cleared from the $5 million verdict awarded to the Marine’s family. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.

     Writing for the majority, Chief Justice John Roberts also had strong words for the church, while defending its right to peaceful protest.
     “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro,” Roberts wrote. “Westboro’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.
     “Speech is powerful,” the majority opinion continues. “It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – 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 – 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.”
     Albert Snyder had sued the Topeka, Kan.-based church, founder Fred Phelps Sr., and Phelps’ daughters, Shirley Phelps-Roper and Rebekah Phelps-Davis, after they picketed his son’s funeral in Westminster, Md.
     Snyder’s son, Matthew, died in Iraq in March 2006.
     Phelps, his two daughters and four of his grandchildren traveled from Topeka to Westminster to protest the funeral. The fundamentalist church, which was founded in 1955, has 60 to 70 members, 50 of whom are related to its founder.
     Their signs contained messages such as, “America is doomed,” “You’re going to hell,” “God hates the USA,” “Pope in hell,” and “Thank God for dead soldiers.”
     Westboro church members believe that military deaths are God’s way of punishing the nation and the military for tolerating homosexuality and other forms of immorality. They publicize their message by picketing various events, including more than 600 funerals to date. This year, the church promised to, but backed down from, picketing the funeral of the 9-year-old girl killed in the Tucson shooting spree and assassination attempt of congresswoman Gabrielle Giffords.
     Justice Roberts said that the church has protection under the First Amendment to broadcast its message, even if is “outrageous.” Speech cannot be muffled just because it is outrageous and distasteful to some or most people, the decision states.
     “While these messages may fall short of refined social or political commentary, 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,” Roberts wrote. “The signs certainly convey Westboro’s position on those issues, in a manner designed … to reach as broad a public audience as possible. And even if a few of the signs – such as ‘You’re going to hell’ and ‘God hates you’ – were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.”
     A Maryland jury that first ruled on Snyder’s lawsuit found that the church was liable for intentional infliction of emotional distress. “[Snyder] testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it,” the Supreme Court decision states.
     A federal judge reduced the jury’s original damages award to $5 million, but the 3rd Circuit later vacated the verdict under the First Amendment.
     In his appeal to the Supreme Court, Snyder had argued that the church should lose protection of its speech because of the context it chose – his son’s funeral – to broadcast that message.
     “The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech,” Roberts wrote. “Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is ‘fairly characterized as constituting speech on a matter of public concern,’ and the funeral setting does not alter that conclusion.”
     Roberts added that the church was not personally attacking the Snyder family, because it has been picketing for the last 20 years.
     “Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father,” Roberts wrote. “The record makes clear that the applicable legal term – ’emotional distress’ – fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street.”
     In his dissent, Alito said the church injured a private citizen and should be held accountable.
     “Petitioner Albert Snyder is not a public figure,” Alito wrote. “He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.”
     The majority, on the other hand, dismissed each of Snyder’s allegations, including a charge that the church subjected him to its speech as a captive audience.
      In light of the Phelps’ funeral-picketing penchant, the decision notes that 44 states including Maryland have recently adopted laws to restrict that conduct. Roberts wrote that such laws illustrate one way to regulate even protected speech.
     “Simply put, the church members had the right to be where they were,” the ruling states. “Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.
     “The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself,” Roberts continued. “A group of parishioners standing at the very spot where Westboro stood, holding signs that said ‘God bless America’ and ‘God loves you,’ would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.
     “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment,” the decision states. “Such speech cannot be restricted simply because it is upsetting or arouses contempt.”
     Maryland’s funeral-picketing regulations were not in effect at the time of the Snyder services. Alito noted in his dissent that that the church’s protest was outside the bounds of the law as written in any case, and that it is up to the courts to protect citizens who suffer intentional infliction of emotional distress, or IIED, where the laws cannot.
     “It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing,” Alito wrote. “And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.”
     Justice Stephen Breyer joined in the majority decision and issued a separate, concurring opinion that provided an expanded analysis of the First Amendment. He noted that picketing a funeral as a means to discuss national matters may be protected in this case, but the court was not endorsing the use of a constitutionally protected ends to justify any means, such as violence.
     “As I understand the court’s opinion, it does not hold or imply that the state is always powerless to provide private individuals with necessary protection,” Breyer wrote.
     In his dissent, Alito jumped on that statement to bolster his contention that church “brutally attacked” the Snyder family.
     Alito notes that the church has “almost limitless opportunities” to express its views through publishing, petitioning, public speaking and media punditry. “It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate,” the justice wrote.
     He added that Phelps and the church “long ago abandoned” its effort to challenge Snyder’s account of intentional infliction of emotional distress. “Instead, they maintained that the First Amendment gave them a license to engage in such conduct,” Alito wrote. “They are wrong.”
     “Allowing family members to have a few hours of peace without harassment does not undermine public debate,” the dissent continues later. “I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.
     “Respondents’ outrageous conduct caused petitioner great injury, and the court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered. In order to have a society in which public issues can beopenly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”

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