Ruling 8-1, the U.S. Supreme court affirmed a decision by the U.S. Court of Appeals to set aside a $5 million tort verdict against Fred Phelps and other members of his church who picketed the funeral of Matthew Snyder, a U.S. Marine who was killed in action in Iraq, thereby causing severe emotional distress to Snyder's father, the plaintiff in this case. According to the Supreme Court's opinion by Chief Justice John Roberts, because the text of the picketers' signs concerned "matters of public concern," their picketing did not involve trespassing or direct interference with the funeral ceremony, their actions were insulated from tort liability for intentional infliction of emotional distress or invasion of privacy. Snyder v. Phelps, No. 09-751 (decision announced on March 2, 2011).
Dissenting, Justice Samuel Alito severely criticized the court, claiming that the majority opinion misstates the facts and improperly insulates outrageous tortious conduct that makes no contribution to public debate on matters of public interest.
Clearly, Alito and the majority of the Court reached sharply differing conclusions about the factual basis for the case.
To Justice Roberts, this was a political protest, conducted in a quiet and orderly manner, that took place far enough from the church in which the funeral was held that it would have satisfied a later-enacted Maryland state law that would have established a 100-foot buffer zone for such expressive activities coincident with funerals. Although the language on the picket signs was extreme and offensive, in the Court's view, extreme and offensive language on matters of public interest is still core political speech deserving of the highest level of constitutional protection, in order that public debate on such issues remain "robust" and "open."
Roberts' view is well summed up by the last section of his opinion, worth quoting in full:
"Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, 'the sensitivity and significance of the interests presented in clashes betweeen First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.' Florida Star v. B.J.F., 491 U.S. 524, 533 (1989).
"Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matter of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech.
"Speech is powerful. 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."
To Justice Alito, this was really a highjacking of a military funeral by an extreme publicity-seeking group which deliberately engages in outrageous conduct calculated to inflict severe emotional injury on innocent victims in order to garner media attention and access for its message. That is, in Alito's view, Phelps is seizing upon the opportunity presented by military funerals to advance his own agenda, realizing that the very hurtfulness and outrageousness of his conduct is what draws the attention of the media.
Furthermore, as Alito documents at length in his dissent, the Court's opinion glosses over and sanitizes the very personal nature of the attack on Snyder and his family undertaken by Phelps in order to advance his agenda of condemning America's tolerance for religious diversity (much of the Phelps rant is directed at the Catholic Church) and sexual minorities (God Hates Fags, etc.). According to both opinions, among the evidence introduced at trial — which certainly had to have played a major role in convincing the jury to award substantial compensatory and punitive damages — was the text of a diatribe against the Snyders published by Phelps on his website as an adjunct to the picketing activity: a vile personalized attack on the Snyders' religious faith. Roberts quoted selectively from a few of the picket signs, while Alito did much more extensive quotation. One reading Roberts' factual summary could come away with the view that Phelps' activities, while offensive, were broadly tolerable, while a reading of Alito's summary would lead a reader to conclude that the jury's decision was probably merited by the evidence before them. But because this appeal from the verdict to the 4th Circuit was brought by Phelps, Phelps got to fashion the question presented for review, and Phelps focused on the picketing, leading the majority of the Court to conclude that they should decide this case without reference to the website diatribe, since the 4th Circuit's decision setting aside the verdict focused on the picketing, which then also became the focus of Snyder's certiorari petition.
But the tort liability imposed by the jury involved all these elements. Does the picketing insulate the website diatribe, which was much more personalized and severe in its focus on the Snyders?
Wrote Alito, "In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents' well-practiced strategy for attracting public attention." The majority treats this incident as a one-off; Alito points out that the record shows Phelps has made a profession of picketing military funerals and other emotionally-laden events over the past 20 years, systematically exploiting such events by intentionally inflicting emotional injury on innocent victims in order to get media attention for his views. The Snyder funeral incident was merely typical of an established modus operandus, but the Court majority treats it as an isolated incident, ignoring the website diatribes against the innocent victims that was coordinated with the picketing activity.
Thus, where the majority sees the activity as general political commentary, Alito sees it as very personal attack. Further, "Respondent's motivation – 'to increase publicity for its views' – did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern." And Alito argued that "there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability," and he pointed out that the various buffer zone laws that states have passed would be ineffectual to prevent the harms found by the jury in this case.
He insisted 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. Exploitation of a funeral for the purpose of attracting public attention 'intrudes upon their grief,' 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." (This final statement relies on Alito's conclusion that the numerous aspersions cast on Snyder and his parents, by implication from the picket signs and more directly from the website, do not constitute comment on matters of public concern.)
"In order to have a society in which public issues can be openly and vigorously debated," concluded Alito, "it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent."
I decided to wait a day after the opinion was issued before writing, because I wanted to give myself adequate time to read all the opinions (there is also a brief concurrence by Justice Breyer) and to think about where I stand on this. Ultimately, I agree with Justice Alito that the Chief Justice's opinion misrepresents the facts, unduly sanitizes the nature of Phelps' activity on this occasion and in general, and strikes the wrong balance between political speech protected by the First Amendment and state tort law. I am a strong supporter of the First Amendment, and I would certainly support the right of Phelps and his jolly band to wield their offensive signs in public places at just about any time they wanted to do so, within the bounds necessary to preserve public order, but I agree with Alito that the combination of picketing funerals and publishing personalized diatribes on the website steps across a line. This is NOT a case about prior restraint; it is a case about compensation after the fact for the infliction of injuries on innocent victims. Ultimately, I side with the dissent.