This morning the Supreme Court handed down its decision in the case of Snyder v. Phelps. The case involved the Westboro Church, which is infamous for its protests at military funerals. The media publicizes the anti-homosexuality aspect of their protests, but the Church chose the Snyders also because his family was Catholic and his parents divorced and they view the Church as a monstrosity that encourages idolatry.
The Court’s 8-1 decision with the lone dissent by Alito sided with the Westboro church in a limited opinion. Although the case might have some interesting effects for First Amendment law in general (the protection of the 1st against suits of intentional infliction of emotional distress even when directed at a private figure if the speech is directed at matters of public concern if I read it right), it questionable whether this is the last word. The Court did not have the opportunity to consider whether laws restricting the time, place, and manner of protests surrounding either military funerals particularly or funerals more broadly are constitutional. Legislatures seem keen to pass such laws, and in fact in Maryland such a law was passed after the Snyder funeral.
Discerning where the Court will go is difficult. I suspect such laws will be upheld. The majority seemed particularly concerned that juries would be unable to fairly determine whether conduct was outrageous in tort cases (like infliction of emotional distress), but this concern would not be applicable if there was a truly content-neutral regulations about the manner of protesting around funerals. Of course, the Court would be rightfully concerned whether such regulations were in fact truly content-neutral but I think a legislature could make a strong argument if the statute is written well enough. Moreover, Alito’s well-reasoned dissent provides the strong emotional basis for such laws: namely, families at funerals are innocent parties who are particularly emotional vulnerable, and the protestors are exploiting their grief to get air time in a most callous and unchristian way.
So like many times when the Court hands down a ruling, the verdict is that very little has been settled and more decisions are to be expected.
Alito was correct in his dissent. The idea that these ghouls have a first amendment right to protest at private funerals is risible, and this decision is an indication of just how bizarre and byzantine our first amendment jurisprudence has become over the years.
“The real significance of these new laws is not that they obviate the need for IIED (Intentional Infliction of Emotional Distress) protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See National Archives and Records Admin. v. Favish , 541 U. S. 157, 168 (2004) . Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their … grief,” ibid. , and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. 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.”
http://www.law.cornell.edu/supct/html/09-751.ZD.html
The idea that these ghouls have a first amendment right to protest at private funerals is risible, and this decision is an indication of just how bizarre and byzantine our first amendment jurisprudence has become over the years.
I think this may have had a different outcome if they go into the cemetery or if Synder sees the words on the signs. As it was, they were on a public sidewalk more visible to the media than to the family. We’ll have to see how future litigation pans out, but I imagine one good thing coming from this decision is that the reduction of IIED in light of speech of public concern may provide greater protection for Christians who charitably wish to discuss the issue of homosexuality. That is, gay rights groups will have less grounds to file tort suits (if any grounds remain after today) for IIED against Christians simply b/c they are offended by the Christian’s moral teachings.
I have to side with the majority on this, despite my disdain for Westboro gang. I have no trust in the civil authorities to determine accurately what constitutes hateful or emotionally distressing speech. I can unhesitatingly say that the Westboro ghoulishness qualifies, but others, in particular those in power, may unhesitatingly say that public speech expressing Catholic moral teaching also qualifies. At the end of the day, the definition of hateful or emotionally distressing speech is dictated by those in power.
As I understand the 1st amendment, it was given so controversial political, social and religious could be discussed without the government breathing down your back, arresting you or censoring you in any way, shape, or form. Phelps and his band of ghouls have that right to make their displeasure about nearly everything known to the public at large. They can post on their blog, they can fax or e-mail, they can put up a video on the net, but what they want to do should have never been a free speach issue. This is simply a band of heartless creeps inflicting pain and misery upon families morning a lost loved one. The government was not trying to dictate what the Westboro Wackos could say about an issue: the families just wanted to be left alone during the funeral and the burial. Why the morons on the bench couldn’t see that is beyond me. can some one please explain this to me?
A couple things are little discussed about Westboro Baptist Church of Topeka.
1. This church founded by Fred Phelps is essentially an extended family. I understand that there are maybe two or three dozen members in all, mostly relatives and shirt-tail relations.
2. Fred Phelps and his daughter (Maggie?) are both attorneys. Fred is disbarred but not Maggie, to the best of my recollection.
So while it is true to say that Westboro Baptist Church represents some of the worst to be found among Christians, it is also true that they represent some of the worst to be found among attorneys. Kansans long ago gave up on these folks.
Michael I am glad you hit this part of the opinion because I don’t think it is getting the attention deserved.
This Court no doubt is strong on the 1st amendment. However it appears to me that the Court is already to again get into these “Free Speech areas” and approve them with some gusto. It seems they approve since that is what in part saved the Westboro people in a way. A free Speech Zone that was out of sight and out of mind. Perhaps that is good in this case. But I am seeing these Free Speech zones at such things as political conventions in about the same remote locations.
What comes up next to mind is the Pro-life movement. Unlike the Phelps, who I suspected has changed no one minds at one of their protest, we have lots of stories of women that decided NOT to abort because of the actions of pro-lifers that were much more present.
I think the Court got this one right in a close case and the case is SO SO narrow here that it appears they might have punted on some things. But these time and space stuff is interesting.
Also note there are signs in the opinion that they might be looking at internet issues next
Stephen ,
It is not so much the GOVT the Court is looking at. It is looking at a specific tort or on this case torts. This has been a big area of 1st amendment law because of the concerns that States very well could help control the content of speech through tort law.
Intentional Infliction of Emotional abuses statutes for instance can often be abused
Jh:
Two cases on point that you mention. There’s a second circuit (I think) case of Bl(A)ck Tea Society v. City of Boston involving a free speech zone created far enough away that people coming to the 2004 Demo. Natl. Convention maybe could see them as they were bussed in. The zone was under train tracks and surrounded by fencing and barbed wire. The zone was upheld due to security concerns.
The other case is cited in Snyder is Madsen v. Women’s Health Center, 512 us 753 (1994), in which the US Supreme Court upheld a Colorado regulation limiting protests in front of abortion facilities (or all medical facilities; don’t remember how specific the statute was) to being 50 feet from the entrance & not approaching women in order to protect women in a particularly emotionally vulnerable state from being traumatized. So the pro-life movement has already been denied a free speech right via statute, though I don’t know if tort action against pro-lifers has been upheld. My guess is that the principles behind Madsen would justify a statute creating a bubble for families at funerals.
There are many who’d say that pro-lifer protesters with their signs depicting aborted fetuses caused them emotional distress. I don’t see how you can ban Westboro at funerals without also banning pro-life protesters at abortion clinics.
Are lies protected under the First Amendment?
Signs saying “God hates dead soldiers” are lies. God is all good and He cannot hate. That is a sin.
RR: I’m no lawyer. I believe truth is an absolute defense. Pictures of aborted fetuses are factual truth.
Just as in NYC and Chicago, local constabularies ought to the rats and later drop the charges.
Examples:
June 10, 2009: A New York City law that will go into effect in July could make it easier for antiabortion-rights protesters to be arrested for restricting access to abortion clinics or harassing people trying to enter the facilities, the New York Times reports.
August 2010: The city of Chicago has dropped its case against a man who was charged with disorderly conduct for praying the Rosary outside an abortion clinic. A clerk at the Cook County Court confirmed Wednesday that the case against Joe Holland — a 25-year-old graduate …
“I don’t see how you can ban Westboro at funerals without also banning pro-life protesters at abortion clinics.”
I think the distinction is easy to make: an abortion clinic is a business open to anyone plunking down the blood money for the contract killing. A funeral is a private ceremony for friends and loved ones of the deceased. No one has a “right” to attend a private funeral. The abortion clinic is open to the public.
No one has a “right” to attend a private funeral. The abortion clinic is open to the public.
Yes, but Westboro wasn’t at the funeral. They were on a sidewalk on the way between the church and cemetery. That sidewalk is open to the public. This case is different if they barged into the funeral service, but they smartly stayed in a clear traditional public forum.
“This case is different if they barged into the funeral service, but they smartly stayed in a clear traditional public forum.”
In order to protest a completely private ceremony, to make the whole affair as much of a circus as they could, and to shout vile insults at the deceased and the family of the deceased. This is quite different from an abortion clinic open to the public and where some great issue of public policy is being addressed. In the case of the Westboro ghouls we have fiends so desperate for publicity that they are willing to inflict unimaginable pain on private individuals at a funeral. This would never have been tolerated by the Founding Fathers, and up till the Sixties the idea that this type of vile abusive behavior would be considered speech protected by the First Amendment would have been regarded as laughable by any court considering it. We have lost the common sense in the law to distinguish between vile conduct and speech, and this is merely another example of a culture that has badly lost its way.
Donald, I know you’re right, but please give us some examples that make plain that this kind of vile conduct wouldn’t been tolarated by the law.
On my way to court Stephen and I’ll reply in more detail later. For now take a look at the line of Fighting Words cases:
http://www.freedomforum.org/templates/document.asp?documentid=13718
Don, abortions are performed in private too. The clinic is open to the public in the same way that a church is.
“Don, abortions are performed in private too.”
Apples and rock salt to funerals RR. Funerals, unless a cremation is involved, have an open air component at a cemetery. The abortionists, no matter how depraved they are, do not perform the abortions outside of the clinic, and protestors at abortion clinics, unless they wish to be arrested for trespass, do not enter the clinic. The Westboro ghouls rely upon the open air nature of funerals to do maximum harm to the mourners.
Ultimately I am afraid their despicable behavior will be answered with violence. One of the main reason why we have laws is to uphold the public peace by allowing wrongs to be redressed by the legal system. The Supreme Court has basically neutralized the only thing that could stop Westboro from utilizing private pain for publicity purposes. Sooner or later some mourner at a funeral will answer with violence this verbal spit in the face to his loved one by these maniacs.
Don:
That’s a hostile audience analysis, not a fighting words analysis. That’s a tougher burden to meet. And I don’t think Westboro has free reign to protest; I think Legislatures will rightfully prohibit these kinds of things from happening near funerals (or at least near enough to prevent violence and the type of media coverage that Westboro so dearly lusts for) using content-neutral time, place, and manner restrictions regarding protests at funerals.
Don, so it all rests on whether there was a cremation involved?
The two usually meld into each other Michael. When you scream out that someone’s son who is being buried is burning in Hell you have both fighting words and a hostile audience. In regard to keeping the Ghouls away from the funeral, that does absolutely nothing to address the fact that they have turned a private ceremony to mourn the loss of a loved one into a circus.
“[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has 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.”
Justice Murphy in Chaplinsky
If the Westboro Ghouls had carried through with their threat to protest at the funeral of nine year old Christina Green, I think they would have finally reaped the violence their behavior has been begging for.
I expect now that these idiots will have copycats following in their footsteps thanks to the Supreme Court decision.
I think the best commentary on this decision was delivered by the Plainiff in the case:
“My first thought was that eight justices didn’t have the common sense that God gave a goat.”
That this behavior is tolerated in our country is ample indication that we can no longer distinguish between liberty and license.
It’s important to remember that the protests in question took place several blocks away from the funeral service, where they could neither be seen nor heard by the attendees. Indeed, if you look at the Plaintiff’s complaint, a big part of his claim for emotional distress is based on his reading about the funeral protest after the fact on the Phelps’ website.
The issue isn’t whether you can disrupt a funeral service.
“Don, so it all rests on whether there was a cremation involved?”
It rests on the fact that open air private funerals are routinely protested by the Westboro Ghouls in order to inflict maximum emotional harm on the mourners in order to reap maximum publicity. Funerals have to be performed outside for a burial at a grave. That is completely different from your examples of abortion protestors where the abortions take place inside the abortuary away from the protestors. No such refuge is available for the mourners at the grave site.
The Wikipedia article on the Westboro Ghouls is especially good. Apparently violence has already broken out at one of their protests:
“During a picket in Seaford, Delaware on May 21, 2006, a mob broke through police lines and tried to assault WBC members who fled into a police van. Some of the mob then began banging on the van attempting to get inside. Two windows of the van were shattered before the van could get away. Five people face criminal charges.” I expect more of this to happen. When the law allows this type of completely outrageous behavior to go on, sooner or later there will be a violent reaction to it.
http://en.wikipedia.org/wiki/Westboro_Baptist_Church
Here is a link to the complaint filed by Mr. Snyder:
http://www.matthewsnyder.org/Complaint.pdf
The actions of the Westboro Ghouls had nothing to do with free speech and everything to do with simple raw hate. They simply picked out a family and dumped raw verbal sewarge on them in order to further their publicity campaign, which did not stop with the protests at the funeral. That private indivuals, not in public life, have no remedy now, courtesy of the Supreme Court, to this type of deranged assault shows how lunatic the world is becoming.
“Indeed, if you look at the Plaintiff’s complaint, a big part of his claim for emotional distress is based on his reading about the funeral protest after the fact on the Phelps’ website.”
Yep, the Westboro Ghouls were so proud of their despicable protest at the funeral of Snyders son, that they made a web video of it and posted it on their website. Oh, and they don’t stop there. The targets of the Westboro protests are often deluged by anonymous hatemail after the funerals.
The actions of the Westboro Ghouls had nothing to do with free speech and everything to do with simple raw hate. They simply picked out a family and dumped raw verbal sewarge on them in order to further their publicity campaign, which did not stop with the protests at the funeral.
Maybe so, but do you trust the government (an ever-changing body) to make the distinction between the two accurately? The difference may be clear to you, but will it always be clear to those empowered to differentiate?
I always trust the people and elections Kyle in this country more than I do the courts. I am all too familiar with how cavalierly the US Supreme Court has “amended” the Constitution beyond recognition. In this case the Court in effect found that a private family subject to the most villianous libel and slander of themselves and their dead son imaginable had no rememedy under law for the damage they had suffered. I think such an outcome is not required by the Constitution, is bad as a matter of public policy and morally stinks literally to High Heaven.
Justice Alito summed it up well at the close of his dissent:
“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 be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.”
http://www.law.cornell.edu/supct/html/09-751.ZD.html
Donald,
I’m not sure I understand your position. You believe that the government should be able to ban criticism of dead solders because why? Because it’s hateful? Don’t you see the problem with that line of thinking?
Clearly you do not understand my position BA. I believe it is constitutional for states to allow suits for intentional infliction of emotional distress when private individuals are subject to the type of behavior engaged in by the Westboro ghouls against the Snyder family. The idea that this type of speech in this context is protected by the Constitution I find risible. Do you see the problem for society when this type of behavior, assaults in public upon the character and reputation of private individuals by a deranged hate group, have no legal remedy?
The fact that we existed as a free society for the vast majority of our history without any hint that this type of behavior could not provoke legal action by the aggrieved parties indicates to me that we are not discussing in this case essential liberty, but rather another example of the seeming inability of many individuals today, on and off courts, to distinguish between liberty and license.
Don, thanks for the link to that article. It confirmed what i already knew in my heart about this stuff. BTW, if violence is inflicted on Fred Pukes and his ghouls, let’s hope the inflicters separate the unfortunate children from the adults when it happens. I’d hate to see innocent children be hurt by the enraged counter-protesters like Westboro has hrt them.
I believe it is constitutional for states to allow suits for intentional infliction of emotional distress when private individuals are subject to the type of behavior engaged in by the Westboro ghouls against the Snyder family.
I understand that. What I don’t see is what the principled basis for your conclusion might be. Is the idea that this case should be sui generis?
“What I don’t see is what the principled basis for your conclusion might be. Is the idea that this case should be sui generis?”
No, although certainly their behavior is an extreme case. I think the law should afford a remedy to private individuals who are subject to this type of vile behavior in public. Society is diminished when we tolerate the type of behavior that the Westboro Ghouls engage in. Of course in the broad span of American history my view would not be unusual. The reaction of the Founding Fathers to the Westboro Ghouls would probably be unprintable with the Ghouls being lucky to get off with a weekend in the stocks being pelted with rotten vegetables. We excuse extremely bad behavior in public today on the grounds of personal freedom when, at bottom, it is simply an unwillingess, or perhaps in some cases an inability, to draw elementary distinctions which our ancestors made with ease. The idea that if the Westboro Ghouls have to pay a multi-million dollar verdict for their outrageous conduct that liberty of speech is in anyway in jeopardy I find ludicrous.
I think the law should afford a remedy to private individuals who are subject to this type of vile behavior in public.
What type of vile behavior?
The reaction of the Founding Fathers to the Westboro Ghouls would probably be unprintable
Given the attitudes towards homosexuality that the Founding Fathers held, their reaction might well be unprintable, though perhaps not for the reasons you suggest.
“What type of vile behavior?”
Protesting at a complete stranger’s funeral and holding up signs saying that he is in Hell, and attacking the religion of the deceased, Catholicism, constitutes as vile behavior in my book.
Making a video of the demonstration and posting it on your website constitutes as vile behavior in my book.
Attacking the parents of the deceased on your website constitutes as vile behavior in my book.
http://www.matthewsnyder.org/Complaint.pdf
As for your implication that the Founding Fathers would have an ounce of sympathy for the Westboro Ghouls, due to the opposition of the Founding Fathers to “buggery” as they might have bluntly phrased it, or the “crime that dare not speak its name” as they might have more genteely called it, I will put that down as a bizarre attempt at making a joke on your part. The Founding Fathers were able to make elementary distinctions between some group legitimately discussing a public issue, and a hate filled cult that attacks innocent people at their most vulnerable. The Founding Fathers had that cardinal virtue called common sense, something sorely lacking in the modern world.