Wednesday, October 6, 2010

Snyder v. Phelps, the military funeral protest case: Oral Argument Analysis

The Court heard oral arguments (transcript here) in Snyder v. Phelps this morning, an appeal involving the First Amendment right to protest juxtaposed against a tort judgment for intentional infliction of emotional distress.  Background on the case below; update above.

Arguing for Albert Snyder, the father of the soldier, Sean Summers stressed "the private targeted nature of the speech" as removing it from First Amendment protection and allowing a tort award for intentional infliction of emotional distress.  Some highlights from the oral argument revolved around the applicability of Hustler v. Falwell and issues regarding public figure and speech on a public matter.  The hypothetical posed by Sotomayor was repeatedly referenced:

JUSTICE SOTOMAYOR:  . . .  in terms of infliction of emotional distress. If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America's doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?

Because the 1988 case of Hustler v. Falwell is the only intentional infliction of emotional distress/First Amendment case decided by the Court, a fact that Summers was repeatedly reminded of during his argument, Summers sought to distinguish the case, which involved a parody of Jerry Falwell done by Hustler Magazine.

MR. SUMMERS: I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you -- if you -


MR. SUMMERS: Or at least reasonable, rational connection. In this case they don't even claim there is a connection. They just used this moment to hijack someone else's private event when they are grieving over a 20-year-old child's funeral.

Kagan isolated a passage from the case in an attempt to focus the issue:

JUSTICE KAGAN: Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this. It says: "Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression."

How does that sentence -- how is that sentence less implicated, in a case about a private figure than in a case about a public figure?


In the oral argument on behalf of Fred Phelps, by his daughter, Margie Phelps, Justice Kagan acknowledged Ms. Phelps as a participant in the picketing that was before the Court, by asking

suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day. Does that person not have a claim for intentional infliction of emotional distress?

Justice Scalia invoked the doctrine of fighting words at several points, including this partiocularly feisty exchange:

JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.

MS. PHELPS: We agree that fighting words are less protected under the First Amendment.

JUSTICE SCALIA: Unprotected.

MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social -

JUSTICE SCALIA: Is that so? Do we know that?

MS. PHELPS: I beg your pardon?

JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.

While Phelps at times argued that Mr. Snyder had made himself into a public figure, ultimately Phelps insisted that the doctrine was one of speech on public issues:  "the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues. Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues."

However, Sotomayor did not appear to be satisfied by that distinction as applied:

JUSTICE SOTOMAYOR:   What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter. Because you are talking about them raising Matthew [Snyder, the decedent] for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.

At what point and how do we take personal attacks and permit those, as opposed to -- I fully accept you're entitled in some circumstances to speak about any political issue you want. But what's the line between doing that and then personalizing it and creating hardship to an individual?  

  At what point?  That is precisely the question that the Court will decide.


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This is definitely a toughie. Most of us feel the 1st Amendment protection of speech should be limited only in extreme instances, and any limits be carefully circumscribed. But as I listened to Nina Totenberg report on this on Morning Edition this morning, hearing the pain in Mr. Snyder's voice it was impossible not to feel that the "Rev" Phelps crossed the line. I'm all for public protest; and we all know that the 1st Amendment isn't needed when the speaker is saying popular or well-accepted things. I think of the neo-Nazis marching in Skokie Illinois when I was a boy and how I understood that act of speech to be a horrible thing but nevertheless protected by our broad application of the 1st Amendment. But I can't help but feel that this is different. Phelps took a private and personal--and painful--event and hijacked it for a platform of his own twisted beliefs. Now, he's entitled to those beliefs, and he's entitled to speak them. But there are limits on speech, as we all know. Justice Holmes said the most popularly known one: that one cannot yell "fire!" in a crowded theater (absent a real fire, of course). I see this case as even more inflammatory (pardon the pun) than that. Perhaps if Mr. Snyder had been holding a public event, or if Rev Phelps wanted to send a letter to the editor or publish a broadside using Mr. Snyder's son's name this would be different. I think another important fact is that Phelps claimed his protest was not aimed directly and specifically at Mr. Snyder's late son, but used the event of his funeral as a platform for his hateful message. (That's even more disturbing, in my opinion.)
No, it's impossible to think of these facts as anything other than a zealous bigot (all Constitutionally protected) intentionally inflicting emotional distress upon a bereaving family (should not be Constitutionally protected). Why couldn't Rev Phelps put on his little protest at the local public park? No, his act of public protest was directed specifically at Mr. Snyder's family during the funeral of his son.
With respect to the slippery slope argument, we carve out exceptions to rules all the time. Perhaps there will be a "funeral" exception, but to paraphrase Justice Powell (?) "we'll know it when we see it."

Posted by: Jaybee755 | Oct 6, 2010 1:44:27 PM

I am pretty sure Matthew Shepard's family felt pain from these protests, but nobody seemed to care when it was the funeral of a gay man beaten to death. Lots of people who are crying foul now said it was free speech then. At that time, it was directed at Judy's late son, not as a general political message of hate.

These protests should be wrong or they should be ok, but it shouldn't rise to a different level based on military membership.

Also, does Justice Sotomayor know something we don't about operations in Iran?

Posted by: Vet | Oct 6, 2010 3:18:19 PM

I can't help but think of this case in light of the level of ostensible "protest" activity that Operation Rescue operated at, directed at Dr. Tiller for a number of years. It far exceeded the Phelp's protest activity at funerals, so much so that Dr. Tiller had to drive an armored vehicle, at his own expense, for routine outings in his own hometown (Rolling Stone did a very thorough article "One Man's God Squad" on Operation Rescue a couple years before the murder).

Posted by: Laura | Oct 6, 2010 4:54:20 PM

A similar protest was held outside of the church where Joe Biden's mother's funeral was held this past January (I live near the church, so took a walk around that morning).
There were four protesters, two with large American flags wrapped around them, tied at their waists, holding signs that said (and I have pictures): Biden in Hell (with Jean Biden's face on it); God Hates Biden; The Beast (with a picture of Pres. Obama's face and a frog leaping out of his mouth, with a verse no.); America is Doomed; Bloody Obama (depictions of fetuses on red background); Mourn for your sins.
It's doubtful that any of the family mourners saw these people or the signs, since the procession didn't pass this corner and the mourners used an entrance on the other side of the building. I found the display very disturbing, but they did not try to talk to me or prevent me from taking pictures of them; they were smiling.
The protesters were mostly ignored by the media covering the event (I didn't see any pictures in TV or newspaper coverage), but I did see a priest talking to them for quite a while -- clearly keeping his distance.
My reaction was that they should be allowed to stand there as proof of what a great country we have. Jean Biden's funeral was more of a public event and so I'm not sure it can be compared to the Snyder funeral. At the same time, if these protesters were trying to communicate something other than hate and ill will, that other message was not well articulated. I think "fighting words" might be as apt a description of their demonstration as "political speech."

Posted by: Paula | Oct 6, 2010 6:16:40 PM

One of many things seemingly forgotten here is the abstention doctrine - don't deal with constitutional issues unless necessary. This is a Maryland tort issue and the appeals court held that the elements of the various torts simply have not been made out by the facts of the matter. The privacy elements cannot apply, because Mr. Snyder announced in public the funeral and things about his boy, and his search on the webpage for things said there cannot turn the matter into assaults on his privacy. And the Snyder family was not faced with at-funeral assaults, because the Phelps's outrages were being perpetrated 100 feet away and out of view of the Snyders and the funeral attendees; Snyder did not find out about it until later. And being one of the only ten states that does not have a statute outlawing demonstrations at funerals, Phelps's actions in Maryland were not against the law, another requirement of one of the torts. So why is this in the constitutional arena? It is a simple tort matter that should never have gone to the supreme court.

Posted by: Michael Kennedy | Oct 7, 2010 3:51:34 AM

@M. Kennedy,

Question: Did the Snyder family do that before or after the funeral? And was the announcement of the funeral anything out of the ordinary - beyond what a normal family would do to alert their friends and family of the funeral?

In other words, it is hard to claim that the Snyder family were "public figures" to any degree if this was in response to what happened at the funeral unless they at least made attempts at being "public figures" before the funeral. A normal obituary and funeral announcement should not be enough to induce becoming a "public figure". This hurdle would likely have to be overcome first in order to say that "privacy" does not apply.

So my question above still stands - I am not a lawyer, nor am I familiar with this case beyond Groklaw or the above article. So please enlighten me.

Posted by: Benjamen R. Meyer | Oct 7, 2010 8:45:41 AM

I like the idea that Justice Kagan seemed to be going down where a distinction is made between simply outrageous political discourse and outrageous political speech that targets a private individual. It wouldn't be surprising if the Court goes down that line in its opinion.

There is a good 2nd Amendment parallel to this issue. Would anyone seriously contend that the right to keep and bear arms offers any protection against a tort involving a gun - especially an intentional tort? Due to concerns about chilling political speech, there is a significant difference between free speech and gun rights. However, the principle that the existence of a right, in of itself, should not absolve a person of their responsibility for injuries caused by the exercise of that right applies equally.

Posted by: Raymond Mutchler | Oct 7, 2010 4:01:28 PM

I have questions from a Scottish viewpoint. It should be clear to all and sundry except the psychopath that a line has been crossed here. Should that line not simply be defined as per other exceptions to the First Amendment? From the ordinary person's viewpoint, whenever a funeral is not being used by its attendees as a platform for their views on public matters, should it not be regarded as a ceremony to be accorded respect and therefore not be disrespected through politicisation? Should we agree with people not being allowed to bury their dead in peace just because they are of a particular political persuasion? Around the site of a funeral, is free speech to be of more value than allowing people to bury their dead in peace? Are some people to be considered (for political reasons) more worthy of being allowed to bury their dead in peace than others?

It could be argued here that a permissive interpretation of the First Amendment appeals to the Democrats because, well, they're permissive and anti-war anyway and that it also appeals to the Republicans because they're against a certain morality being legitimised in the military. I would have the greatest sympathy for the Snyder family, caught between those two agendas. Whatever happened to Chaplinksy v New Hampshire, 1942, and the exception of fighting words? "Damned fascist" is not acceptable but "fag troops, you're going to hell" is?

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." And morality, the man says.

Posted by: Calum | Feb 18, 2012 12:57:24 PM

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