Snyder v. Phelps: a First Amendment lesson

By an 8-1 vote that nearly obliterated the usual party or ideological lines, the Supreme Court has overturned a Maryland court award of damages against Fred Phelps's notorious Westboro Baptist Church of "God Hates Fags" fame. Chief Justice Roberts, a Bush appointee, wrote the decision, while another Bush appointee, Justice Alito, was the lone dissenter.

Westboro had been hit with almost $3,000,000 in compensatory damages and $8,000,000 in punitive damages for emotional distress allegedly inflicted upon the Snyder family in the course of their picketing the funeral of Lance Cpl. Matthew Snyder, who'd been KIA in Iraq. The picketing had been relegated to the equivalent of a "free speech" zone 1,000 feet away from the funeral service; the funeral procession passed no closer than 200 feet to the picketers, who were not allowed on church or cemetery property. Snyder's father only saw the picketers' signs on a newscast after the fact, but was sufficiently disturbed by them to sue Phelps and his church.

Fred Phelps ironically owes his victory today in part to Larry Flynt. The Hustler publisher's famous legal battle with Jerry Falwell resulted in a precedent confirming the First Amendment as a shield against tort action over emotional distress. As the Chief Justice notes, precedent requires courts to determine whether disputed speech "is of public or private concern" in order to determine whether the First Amendment trumps tort law. According to Roberts, "The 'content' of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of 'purely private concern.'...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 Church -- are matters of public import." The majority rejects Snyder's contention that Westboro's choice of his son's funeral to picket makes the picketing an essentially private matter. They don't dispute that Phelps caused the Snyder family considerable emotional distress -- "the applicable legal term ... fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief," Roberts writes -- but emotional distress can't become a pretext to suppress obnoxiously controversial opinions on public matters. While affirming that funeral picketing is subject to regulation, and noting that Maryland has adopted regulatory measures since the Snyder funeral, the majority assumes that such laws have a less chilling effect on public discourse than punitive tort awards. Roberts concludes:

Speech is powerful. It can stir people to action, move them to both tears of 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.

Such a preoration gives Justice Alito a tough act to follow. What led him to stand alone against the Court's liberals and the rest of its conservatives? His is a visceral response to Westboro's provocation, and he comes out slugging. "Our profound national commitment to free and open discourse is not a license for the vicious verbal assault that occurred in this case," he writes. In his view, Phelps deprived Snyder of his "elementary right" to bury his son in peace, and he can't accept that "the First Amendment protected [Westboro's] right to brutalize Mr. Snyder." Snyder's privacy rights were further violated, Alito claims, by statements that blame the Snyder family for bringing Mathew up wrong and somehow contributing to his early death. Such charges, the justice insists, are slanderously private, not publicly relevant.

Alito's reasoning seems to be that, since the First Amendment allows Westboro so many ways to spread their message in "uninhibited" fashion, their picketing a funeral is unjustifiably superfluous. "It does not follow," the justice contends, "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." This seems to be the crucial difference between Alito's and the majority position. Roberts extends First Amendment protection to any utterance of Westboro on contextual grounds. Because he deems each picket sign a comment on issues of public interest, each sign and slogan is assumed to make a "contribution to public debate" worthy of constitutional protection. Alito would appear to prefer a qualitative evaluation of every utterance. Context or relevance alone, he implies, doesn't guarantee that any given utterance is a "contribution to public debate." So long as he refuses to concede the point, Alito would let tort law trump the First Amendment. "When grave injury is intentionally inflicted by means of an attack like the one at issue here," he argues, "the First Amendment should not interfere with recovery."

Alito concludes: "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 the petitioner." I'm not sure I can agree, if only because Americans are so thin skinned today that many are likely to have a low personal threshold of "brutalization." In a political environment where many people equate strong criticism of their views with personal hatred, and tougher talk from all sides is only more likely, emotional distress is a dangerous standard to uphold for regulating political discourse. If an objective standard of "brutalization" were possible I'd be more sympathetic with Alito's reasoning. As things are, the majority reminds us that there remain remedies to minimize whatever emotional damage Phelps might inflict, short of the unconstitutional expedient of silencing him.

Overall, the opinions in Snyder v. Phelps make admirable reading because they show justices doing their job, for once, the way they were meant to, their opinions apparently undetermined by partisan commitments. Here we see Bush justices disagreeing with each other, and one standing alongside Clinton and Obama appointees -- though Justice Breyer felt it necessary to issue his own concurrence. It's a relief to see that some questions of public life aren't decided along party lines, even if they haven't been settled today to everyone's satisfaction.