Thursday, April 21, 2011

Is the First Amendment Too Protective of Controversial Speech?

Matt Yost

Snyder v. Phelps, 130 S. Ct. 1737 - 2010

Over the past twenty years or so, the members of the Westboro Baptist Church have been making headlines across the country with their radical beliefs and protests. Often carrying signs containing such messages as “Priests Rape Boys,” and “God Hates Fags,” the members of this church represent an example of the extent of the power of the First Amendment.

In March of 2006, U.S. Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His funeral was held in Westminister, Maryland, where Snyder was born. The congregants of the Westboro Baptist Church worked with local authorities to plan their picket. The church members protested approximately 1,000 feet from the church in a public space. The protestors did not disrupt the funeral, and Snyder’s father conceded that he could not read the signs and only discovered what they said later that night when he watched the news on TV.

Snyder filed suit in the District Court of Maryland and was awarded nearly $11 million in damages for compensatory damages, emotional distress, and punitive damages. The leader of the WBC, Fred Phelps, filed an appeal and also sought a mistrial based on a statement the judge made to the jury. Judge Richard D. Bennet informed the jurors that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements, and that the jury must decide "whether the defendant's actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection."

Bennet reduced the total damages to five million dollars in 2008, causing Phelps to file another appeal in the Fourth Circuit Court of Appeals. Phelps won the case on the grounds that the case was decided as a matter of law instead of as a matter of fact. The court dropped all damages against Phelps and ordered Snyder to pay about $16,000 to Phelps to pay his court fees.

In March of 2010, Snyder filed a writ of certiorari with the Supreme Court of the United States. The case was heard October 6, 2010 and decided March 2, 2011. Eight judges sided with the majority, one judge concurred, and one judge dissented.

The Justices of the Supreme Court decided to choose the case because of its First Amendment implications. The controversial issue here was to decide if First Amendment protection was forfeited if the speech concerned was particularly disgusting and distasteful. The Court also wished to determine several other things which are spelled out in the case abstract and opinions published by the justices. One such question they wished to answer was whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter. Another was whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly. Lastly they wanted to determine whether an individual attending a family member’s funeral constitutes a "captive audience" who is entitled to state protection from unwanted communication.

Fred Phelps, leader and founder of the church based his argument on his First Amendment rights. He and his followers claimed that they were not specifically targeting Snyder, they were just using the funeral as a backdrop for their message to reach a larger audience. The Church followed local police guidance, and did not break any laws or “invade” the funeral. They kept their distance from those attending the funeral, and limited their message to opinions concerning public issues.

Snyder argued on the basis of emotional injuries. He claims to have become physically ill at the thought of the Church picketing at his innocent son’s funeral. Snyder’s diabetes became more severe as a result of the funeral protest. He now also suffers from depression. Snyder also added a “captive audience” element to his lawsuit, claiming that he was forced to listen to the protestors and could not escape their messages.

The Supreme Court ruled in favor of Pastor Phelps, in an 8-1 majority decision. The lone dissenting opinion was that of Justice Samuel Alito. There was one concurring opinion which was delivered by Stephen Breyer.

Justice Roberts delivered the majority opinion of the Court. He explains a plaintiff [in this case, Snyder,] may be successful in a suit for intentional infliction of emotional distress if “the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.” However, he also makes sure to point out that speech that is of public concern cannot be censored because it is at the core of the meaning of the First Amendment.

But how does the Court determine what speech is of public concern and what isn’t? Roberts reveals that in Connick v. Meyers (461 U.S. 138103 S. Ct. 1684,75 L. Ed. 2d 708,1983 U.S.) the court ruled that speech that is of public concern is speech which can be “fairly considered as relating to any matter of political, social or any other concern to the community;” or which is “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Similarly, in Rankin v McPherson (483 U.S. 378 (1987). 483 U.S. 378,) the court ruled that the controversial or polarizing nature of statements is irrelevant in determining if a statement is of public concern. The fact that the protest coincided with the funeral do not escalate the statements to private concern since they were made on public lands and regarded U.S. military policy. Roberts writes: “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

In regards to the “intrusion upon seclusion” aspect of the lawsuit, the Court ruled in favor of Westboro. This was due to a lack of evidence that the protestors disrupted the funeral proceedings in any way, and also due in part to Snyder’s admission that he could only see the tops of the signs and that he hadn’t known the reason of the protest until later that night. The same reasoning also was used to dismiss “captive audience” tort as well.

In his dissenting opinion, Justice Alito argues in favor of Snyder, claiming that the protestors viciously attacked both Matthew Snyder and his father in ways so egregious as to bypass the public concern issue and jump straight to defamation and intentional infliction of emotion distress. Alito writes that the Church’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Alito also argues that the speech goes beyond “public concern” because a reasonable person who viewed signs reading “God hates fags” at a funeral would logically assume that the signs refer to the deceased. This essentially personally attacks Matthew Snyder, and becomes personal and defamatory. This also meets the “fighting words” standard established in Chaplinsky v. New Hampshire (315 U.S. 568 (1942).)

The Court’s ruling in this case allow for a liberal interpretation of freedom of speech. Free speech advocates have won a large victory since the court has now decided that speech cannot be outlawed simply because it hurts another person’s feelings. To value one person’s feelings in higher regard than the speech of another would undermine the entire First Amendment.

Forty two senators, including Majority leader, Harry Reid, and Minority leader, Mitch McConnell, filed briefs on behalf of Albert Snyder. Their basis relied on state laws in forty six states which regulate protests at military funerals. These laws have been declared constitutional in the past because they advance a legitimate government objective, and still allow for the message to be spread in forums other than protests.

Political commentator, Bill O’Reilly, offered to help Snyder pay his legal fees. O’Reilly has been outspoken with his disagreement in the ruling in this case.

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