U.S. Supreme Court Upholds Free Speech in Funeral Protest Case

"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."

So concludes the majority opinion of the U.S. Supreme Court in Snyder v. Phelps, a case that pitted the free speech clause against a father's privacy interests related to the funeral of his son, a Marine killed in the line of duty in Iraq.

Members of the Westboro Baptist Church staged protests in Maryland during the funeral of Matthew Snyder. Church members believe that God is punishing the United States for its toleration of homosexuality, particularly in the military. On the day of the funeral Church members carried signs that stated: "God Hates the USA/Thank God for 9/11," "America is Doomed," "Thank God for Dead Soldiers," "Priests Rape Boys" and "God Hates Fags," among others similarly worded. As they had been instructed by local authorities, they held their protest approximately 1,000 feet from the church where the funeral was conducted. They did not interfere with the conduct of the funeral and the protest was non-violent. The funeral procession passed within 200 to 300 feet of the protest, and although Snyder's father could see the tops of the signs, it was not until later that he saw what was written on them when he watched a news broadcast.

Snyder brought a number of state law claims against the members of Westboro and the church itself. The case ultimately went to trial on claims for (1) intentional infliction of emotional distress, (2) invasion of privacy – intrusion against seclusion, and (3) civil conspiracy. The jury found in favor of Snyder and awarded compensatory and punitive damages.

In its March 2, 2011 decision, the Supreme Court began its review by stating that "[w]hether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all of the circumstances of the case." Speech on matters of public concern receives the highest protection offered by the First Amendment. While admitting that the parameters of what constitute speech on matters of public concern are not well defined, the Court provided the explanation that speech falls within the sphere of "public concern when it can 'be fairly considered as relating to a matter of political, social, or other concern to the community,' … or when it 'is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public[.]' … The arguably 'inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.'"

The Court also said that whether speech is of public or private concern requires an examination of the content, form and context of the speech. The Court had little trouble concluding that the content of Westboro's signs related to "broad issues of interest to society at large" as opposed to purely private matters. "[T]he 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 clergy – are matters of public concern." The Court ruled that the fact the protest was in connection with a funeral could not transform the nature of the speech.

"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. 'If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.' … Indeed, 'the point of all speech protection … is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.'"

Accordingly, the Court ruled that state tort claims of intentional infliction of emotional distress, invasion of privacy and civil conspiracy could not stand in the face of the First Amendment's protection of the speech at issue.