Just after the Supreme Court starts up its new term this month, it will hear the case of Snyder v. Phelps. This case stems from the picketing of a military funeral by religious zealots bearing signs opposing homosexuality, Catholicism and the USA. A lower court ruled that the conduct of the Phelps family and their Westboro Baptist Church was so outrageous as to be tortuous and awarded the parents of the deceased Marine $5 million in damages for intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy.
The 4th Circuit reversed the trial court decision, holding that the First Amendment protected the Phelpses’ speech, thereby precluding its serving as the foundation for tort claims. The 4th Circuit opinion did not address the tort claims due to preclusion.
Upholding First Amendment rights often means protecting speech that the public finds reprehensible, and the Snyder case epitomizes that concept. The behavior that the 4th Circuit found to be constitutionally protected in Snyder consisted of setting up pickets at the funeral of a total stranger bearing inflammatory slogans. Some of the signs read: “Thank God for Dead Soldiers,””God Hates the USA/Thank God for 9/11,””You’re Going to Hell,” “God Hates You,” and “God Hates F*gs.” Not only did the Phelps family picket the funeral, they posted an “Epic” on a website afterward containing disparaging commentary, including statements that the dead soldier’s parents “taught Matthew to defy his Creator, to divorce, and to commit adultery;” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity;” and “taught Matthew to be an idolater.”
In ruling on whether the Phelpses’ behavior falls under the cloak of the First Amendment’s protection, the Supreme Court cannot get caught up in the desirability of the speech. What the court has to do is examine the speech to determine whether it constituted any assertions of fact about plaintiff Snyder or his deceased son subject to proof testing. If the court finds that the nature of the Phelps speech consisted of assertions of provable fact, the speech might fall outside the First Amendment’s protection. But if instead the court finds the speech to be hyperbolic and rhetorical in nature – speech intended to incite debate on issues – it would have to conclude that the speech was protected by the First Amendment, precluding use of those statements to impose tort liability on the Phelpses.
In analyzing the picket signs and the Internet postings, the 4th Circuit was persuaded that the speech was constitutionally protected because it was hyperbolic and rhetorical in nature. In reaching this conclusion, the court pointed to the emotional tenor of the speech and its propensity to draw attention to the issues it raised. The court noted the use of plurals in some of the signs, saying the signs were not addressing Matthew, but a larger group.
With respect to the “Epic,” the court noted that it was published on the church website and the Phelpses made no effort to bring it to Snyder’s attention. Although it made statements about the way Matthew’s parents raised him, the court concluded that reasonable readers would see the speech as expressing a religious viewpoint rather than stating provable facts.
The Supreme Court’s willingness to hear the case is an indication that the case raises an important issue. But whether the court will uphold or reverse the 4th Circuit in Snyder v. Phelps remains to be seen.