an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today the Supreme Court hears argument in Snyder v. Phelps. The case pits the privacy interests of the father of a dead Marine burying his son against the First Amendment rights of strangers picketing at the funeral. As Neil Richards has said, respondent Fred W. Phelps, Sr. is the least likeable party in all of First Amendment jurisprudence. But I predict Phelps will win because even if the Court is inclined to apply lesser First Amendment protections to funeral protests, this is the wrong case for the Court to do it. Petitioner Albert Snyder’s son, Matthew, was killed while serving as a Marine in Iraq. Respondent Fred W. Phelps, Sr. is the founder and pastor of the Westboro Baptist Church in Topeka. Among the beliefs of that church’s members is that god hates homosexuality and punishes America for its tolerance of homosexual activities. Members of the church have picketed military funerals around the country to assert these beliefs and publicize their message.
In 2006, Phelps and other members of the church traveled to the Snyders’ hometown of Westminster, Maryland to picket Matthew Snyder’s funeral. During the picket, the church members held signs that included general messages such as “God Hates the USA” and “Fag troops” and more specific messages such as “You’re going to hell” and “Thank God for dead soldiers.” Several weeks after the funeral, the church posted on its website an “epic” entitled “The Burden of Marine Lance Cpl. Matthew Snyder” which included statements by one of the church members that Albert Snyder “taught Matthew to defy his creator,” “raised him for the devil,” and “taught him that God was a liar.”
Albert Snyder sued Fred Phelps, the church, and other individual church members in federal court asserting five state law tort causes of action. Three claims survived summary judgment: intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. Following a trial, the jury awarded Albert Snyder $2.9 million in compensatory damages and $8 million in punitive damages. The district court subsequently reduced the total damage award to $5 million.
On appeal, the Fourth Circuit reversed, holding that the First Amendment barred the imposition of tort liability. Applying Hustler Magazine, Inc. v. Falwell (1988) and Milkovich v. Lorain Journal (1990), the circuit court reasoned that the First Amendment shields from civil liability statements that cannot be interpreted as stating actual facts about an individual. Here, most of the signs held by the church members addressed matters of public concern, without a factual connotation; observers would not interpret the messages as asserting facts about Albert Snyder or his son; and the signs contained (protected) imaginative and hyperbolic rhetoric intended to spark debate. (The court found two of the signs, “You’re going to hell” and “God hates you” to be closer calls but nonetheless protected.) Similarly, the court held that the “epic” posted on the website could not reasonably be understood to assert verifiable facts about the Snyders. The First Amendment therefore barred all of the tort claims.
Albert Snyder argues before the Supreme Court that the circuit court applied the wrong line of cases. In Falwell the Court reversed on First Amendment grounds a judgment awarding Reverend Jerry Falwell damages for intentional infliction of emotional distress after Hustler Magazine published a (fictional) account of Falwell having sex with his mother. Snyder contends that precedent applies only to tort actions by public figures, which he is not. In Milkovich the Court held that because a newspaper’s reference to a wrestling coach as a “liar” (based on the coach’s allegedly deceitful testimony before a state athletics council) was a statement capable of being proven true or false, the First Amendment did not bar a state defamation claim against the newspaper. Snyder says this precedent applies only to defamation claims and not to his tort claims.
Snyder cites Frisby v. Schultz (1988). In that case, the Court invoked privacy concerns with respect to unwanted speech in front of a home and upheld a municipal ordinance restricting labor pickets in residential areas. Snyder asks the Court to recognize an analogous privacy protection from unwanted speech at a funeral. In that regard, he claims that he was a captive audience at his son’s funeral and that the picket interfered with his right to bury his son in a religious ceremony. Under those particular circumstances, he says, the state’s interest in protecting him as a private figure should outweigh the First Amendment rights of the picketers to engage in public protest.
In response to the activities of Pastor Phelps, various municipalities have imposed restrictions on picketing at military funerals. If Phelps challenged one of those restrictions on First Amendment grounds, it’s quite possible the Supreme Court would hold that some restrictions on funeral picketing are constitutional. But that is not the case of Snyder v. Phelps. Instead, Phelps and the other members of his group did everything by the book. They contacted Westminster officials before traveling to the funeral; they complied with local ordinances governing demonstrations; and they followed police directions on the scene.
Even worse for Snyder’s argument, there was no impact on the funeral itself. The church members conducted their picket in a fenced-in area 1,000 feet from the church entrance. The church entrance was not blocked and mourners were not confronted. Albert Snyder did not see the picketers or their signs at the time of the funeral. The first Snyder saw of the picket was footage on the evening news. And he only saw the “epic” when he Googled his son’s name and visited the church’s website.
Given all of this—that there was no interference with the funeral, that the service and burial proceeded as planned, that Albert Snyder was not impacted at the time of the funeral by the activities of the members of Phelps’s church, and that he was only later affected because he watched a news report and visited the church website—it seems to me inevitable that the Court will affirm the Fourth Circuit’s decision. The only real question here is whether in affirming the Court will suggest that although the First Amendment bars these kinds of tort claims it does allow for some governmental regulation of funeral pickets given the unique privacy concerns that funerals raise. Posted
by Jason Mazzone [link]