First Amendment: Freedom of Expression in Matters of Public Debate

In 1955, Fred Phelps founded the Westboro Baptist Church, a congregation believing that America is hated by God and will be punished for tolerating homosexuality (particularly in the military).  The church has adopted a strategy of communicating its views by picketing, often at military funerals; the church issues press releases and internet postings to draw public attention.  In March 2006, the Westboro Church picketed the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq.  Picketing took place on public land separated from the funeral by 1,000 feet and a temporary fence, and was in full compliance with police instructions.  The picketers held signs stating things like: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates You.”  Snyder’s father filed suit against Phelps, his daughters, and the Westboro Church (collectively “Westboro”) in the U.S. District Court for the District of Maryland, alleging state tort law claims. At trial, a jury found in favor of Snyder’s claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy, holding Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages.  Westboro filed post-trial motions contending that the jury award was grossly excessive, and seeking judgment as a matter of law that its speech was protected from all liability by the First Amendment.  Although the District Court remitted the punitive damages to $2.1 million, it otherwise left the jury verdict intact.  The Fourth Circuit Court of Appeals held that Westboro’s signs and statements were entitled to First Amendment protection.

In Snyder v. Phelps (09-751), an eight-justice majority upheld the determination of the Court of Appeals. Justice Roberts wrote the majority opinion concluding that the signs pertained to matters of public concern, thus constituting speech protected by the First Amendment.  Acknowledging that the signs “may fall short of refined social or political commentary,” the Court nevertheless decided that the issues they addressed (the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving Catholic clergy) are “matters of public import” protected by the First Amendment.  Rejecting Snyder’s argument that the “context” of the speech – a private funeral – rendered it a matter of private concern not protected by the First Amendment, the Court determined that its public location and public message were not altered by a funeral setting.  The Court also noted that the picketing was peaceful, did not disrupt the funeral, and was in full compliance with then-applicable Maryland law and police guidance. While emphasizing the narrowness of its holding, the Court also stressed the importance of First Amendment protections for speech on issues of public debate that may be upsetting or may arouse contempt. The Court also declined to extend the “captive audience” doctrine to the circumstances of this case. A concurring opinion by Justice Breyer noted that the decision was fact-specific, relating only to Westboro’s picketing activity without considering the effect of online publications or television broadcasting.  Justice Alito’s dissent argued that any portions of the speech legitimately touching on matters of public concern should not be permitted to protect the remaining content that, in his judgment, was personally directed to the Snyder family and intended to wound them, thus constituting a legitimate case of intentional infliction of emotional distress.