Wednesday, March 2, 2011
The Supreme Court ruled today in Snyder v. Phelps that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion. Chief Justice Roberts wrote for the eight-member majority; Justice Breyer wrote a concurrence; Justice Alito wrote the lone dissent. We posted on the oral argument here, with a link to background on the case.
The case involved state tort judgments in favor of Snyder's father against Phelps after Phelps and members of his church appeared at Snyder's Catholic Church funeral with signs reading, "Thank God for Dead Soldiers," "Fags Doom Nations," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell," among other similar messages. The District Court reduced the damage awards, but the Fourth Circuit ruled that they violated the First Amendment Speech Clause. The Supreme Court affirmed.
Chief Justice Roberts wrote for the eight-member majority that Phelps's speech was on matters of public import--"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," op. at 8--and was therefore entitled to special protection under the First Amendment. Op. at 6. The context--i.e., the funeral--didn't change this, because here Phelps's signs were on public land next to a public street (and not in a private or non-public forum). And the fact that Phelps's speech included both personal attacks (i.e., speech on matters of private concern, subject to lesser First Amendment protection) and speech on public matters did not transform Phelps's public-oriented speech into a contrived shield to protect his otherwise unprotected personal attacks: Phelps had long been picketing with similar signs long before Snyder's funeral, and there was no indication that Phelps was using his statements on public matters to shield his personal attacks.
The Court also held that Phelps's speech was protected against Snyder's intrusion upon seclusion damage award. The Court ruled that Snyder was not a captive audience, and Phelps and his fellow protesters stayed away from the service. "Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself." Op. at 14.
Chief Justice Roberts emphasized the narrowness of the ruling based on the facts and suggested that states could enact and enforce reasonable content-neutral time, place, and manner restrictions on speech at funerals. (He noted that 43 states and the federal government do just that.) Justice Breyer underscored the narrowness point in concurrence, with this illustration:
Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.
Breyer Concurrence, at 1.
Justice Alito in dissent emphasized the private nature of Phelps's attacks on Snyder and argued that Phelps's other, public-oriented statements couldn't shield those private attacks from state tort damage awards based upon the private attacks.