Snyder v. Phelps, et. al.

Last week the Roberts’ Court issued yet another First Amendment ruling.  In an 8-1 decision, the Court held the First Amendment bars recovery for the tort of Intentional Infliction of Emotional Distress (IIED) when the offending speech concerns a matter relating to public rather than private matters.  While conceding the defendants intentionally chose the funeral of plaintiff’s son to publish their views, it nevertheless held the communication within the “special protection” afforded by the First Amendment. 

Factual Summary

The Westboro Baptist Church, and its founder Fred Phelps, have picketed military funerals for the past twenty years to raise awareness of its belief that God hates the United States for its tolerance of homosexuality.  They specifically target military funerals brandishing picket signs stating, “God Hates the USA/Thank God for 9-11; Thank God for Dead Soldiers; God Hates You; Don’t Pray for the USA;” and “Thank God for IEDs”.  The group attended the funeral of Marine Lance Corporal Matthew Snyder who was killed in Iraq in the line of duty.  They also tailored their signs to attack Lance Cpl. Snyder: “God Almighty Killed Lance Cpl. Snyder; He died in shame, not honor — for a fag nation cursed by God…Now in Hell.”  (It should be noted that the Westboro Baptist Church has fewer than 100 members, almost all of whom are relatives of Rev. Phelps). 

All parties agree the Church conducted its protest within the “time, place and manner restrictions” of the State of Maryland.  These regulations required the demonstration to remain within a 10 by 25 foot plot located 1000 feet from the church where the funeral was held.  The plaintiff, Lance Cpl. Snyder’s father, testified he was only somewhat aware of the protest on the day of the funeral, but subsequently observed significant media coverage of the event.  He filed a lawsuit alleging IIED, inter alia, against Westboro Baptist and Phelps individually.  A jury subsequently returned a multi-million dollar verdict in his favor.


The Supreme Court reiterated that speech “fairly considered as relating to any matter of political, social, or other concern to the community…occupies the highest rung of the hierarchy of First Amendment values” deserving special protection.  The deliberately provacative context of Westboro’s protest — at the Marine’s funeral — failed to transform the nature of the speech.  While certainly “outrageous”, the speech did comment on matters of public concern and therefore deserved the highest degree of protection.   The Nation chose to shield hurtful speech on public issues to preserve open and free debate, and the Court overturned the verdict in Mr. Snyder’s favor.


Justice Alito was the lone dissenter.  In spite of many other available venues (parks, military recruitment centers, etc.), Westboro deliberately pickets funerals “because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased” while generating significant media coverage.  Alito contends Westboro ceased commenting on matters of public concern when it attacked Cpl. Snyder’s religion (Roman Catholic) and his “wicked, sinful manner of life” defending the “United States of Sodom”.  Alito sought to uphold the verdict based upon Westboro’s direct, unfounded attack on Cpl. Snyder which it specifically designed to induce anguish in the Snyder family.

My Two Cents

While I’m mindful of Alito’s objections, the majority got this right.  Clearly Westboro sought to use Cpl. Snyder’s funeral to generate media attention to their cause.  This tactic has proven remarkably effective for them; while largely ignored on a national scale, the local media invariably runs a story on these demonstrations when a small town’s “favorite son” returns home in a coffin.  Even with direct assaults on the decedent’s religion and values, the larger social issues are subject of national debate.  The fact that I vehemently disagree with Westboro’s positions and methods doesn’t lessen their First Amendment protections, but it proves Mr. Zappa was right once again: JESUS THINKS YOU’RE A JERK!

6 thoughts on “Snyder v. Phelps, et. al.

  1. peashoot

    I won’t waste my time arguing with you about who “got it right” in this ruling. I find myself somewhat surprised to say this, in that I’m about to side with someone whom I more or less always disagree with, but I think Alito got it right.

    This is an interesting case, to be sure. And for all that has been, can be, and will said about it, I will add the following ramble: It strikes me as a serious problem that our country’s justice system makes rulings that purportedly uphold the First Amendment’s allowance of free speech when it also clearly makes a record that allows for (perhaps even advocates) “hate speech.” Does “hate speech” mean exactly what you’ve written above, e.g., “the tort of Intentional Infliction of Emotional Distress (IIED) when the offending speech concerns a matter relating to public rather than private matters”? If not, it’s quite close. In any event, I’m hard pressed to see the scenario you’ve presented above as a case in which the Westboro Baptist Church DID NOT intentionally inflict emotional distress. Perhaps, Barrister Billium, you can help me see this more clearly.

    But let me scoot past the legalese and get to what irks me in cases like this is that the US is, as far as I can determine, the only country in the world that does not have laws against hate speech. Some countries’ hate speech laws are religious-based and some are secular-based. Some countries proscribe and prosecute a whole lot more than just hate speech, as we all know. And, before anyone gets their knickers in a twist and suggests that the limiting of one type of speech leads to the automatic limiting of other types of speech, let me clearly state that I am not an advocate of flatly and willy-nilly curbing people’s words (or expression generally, including pictorial forms as well). I am against the violation of people’s rights to live without fear of or directly experiencing violence against them. And I believe that words can lead to violence. From where I sit, words matter. And language can, and has throughout world history, led to the infringement of people’s wellbeing, livelihood, safety, ability to live. On this (again, I surprise myself), I wonder if Mr. Zappa got it wrong (see, for example, his appearance on CNN’s Crossfire in 1986 – But I should add, I do love Zappa’s presence on this panel, and especially how he so infuriates his host and co-guests – I just think he could have been far more nuanced in his position, while maintaining his principled stance). Words, as any slightly attentive student of world history knows, can kill. I appreciate and am sympathetic with Mr. Zappa’s views on religion. In the little that I’ve seen of his public statements on language in general, however, I think he reveals a shortsighted and narrow understanding of rhetoric and history (and the history of rhetoric).

    Wildbilly, you have not suggested this (indeed, I’ve moved beyond your statements above into a different area and onto a rant), I know, but I’ve heard people say that the federal curbing one type of speech, e.g., hate speech, means or naturally leads to the curbing of other types of speech. I do not buy this argument. I do not, for example, think the case against Judas Priest in the 1980s, which suggested that their lyrics led people to kill themselves (or something like that) was based in solid, verifiable, scientific data. And the ruling in their favor was the right ruling. But we do know, without question, that the racial theorizing and social Darwinism of the 19-20th centuries in the UK and Europe, based on patently bogus imperialist assumptions, bad historical linguistics and mythology, among other things was picked up by the Weimar Republic’s “academic” coterie and spun into the Third Reich’s rhetoric of the Nordic Übermensch, used as a justification for the enslavement of Africans in North America, and so on down the line. In more recent times, and more obviously related to the case you cite above, hate speech (religious-based or otherwise) about sexual orientation has led, in the US, to countless deaths — e.g., Matthew Shepherd, Tyler Clementi — and physical attacks of homosexuals and transgendered people. I think we ought to look at Rep. Peter King’s congressional hearings Thursday and Friday of this past week as a potential form of hate speech against Muslims. His visible platform, from a place of authority no less, will inform countless people in this country that Muslims in America are radical, and while there indeed may be radical Muslims in America, he is reporting this as a “Islamic problem” rather than a problem of religion, or a problem of radicalism in general, and this will, I fear, lead to profiling and random attacks. Should this be allowed in a civil society? We are supposed to live in a civil society, aren’t we? What does civil mean, after all? It’s about living as a “citizen,” and I think we’ve lost sight of what citizenship entails when we allow picketing like that carried out by Westboro Baptist Church to go unchecked.

    Surely, none of this is “news” to any thoughtful, observant person’s ears.

  2. wildbillyscircusstory Post author

    While I’m sympathetic to your forced alliance with Alito, I’m unpersuaded. The law does not protect speech intended to incite violence or physical harm, but it does require a likelihood of direct action by the listener. The “fighting words” exception earns no Constitutional protection.

    Taking your last point first, civility is in the eye of the beholder and usually, when it comes to speech, dependent upon the degree to which we agree/disagree with the speaker. Many in the country thought the Tea Party protests “uncivil”; others found the recent events in Wisconsin to be highly unruly. One’s opinion on the tone of these events likely correlates with how they feel about the underlying ideas.

    Your solution to the civility problem is a manner of managing conduct by prohibiting “hate speech”. I loathe the very notion of codifying and prohibiting “hate speech” because it is highly subjective and fluid. The term “hate speech” itself is a loaded term: who could be against hate, right? But it is enormously problematic because “hate speech” is simply language or ideas deemed unworthy by the state. Ergo, totalitarianism and FZ’s proclamation that they are “just words”.

    Your citation of Weimar/Nazi Germany is instructive. A person protesting the treatment of Jews, Slavs and homosexuals or openly advocating their full integration into society would be jailed under some rubric of speech harmful to the state during the Third Reich. Now, obviously you’d be correct to scold me by stating that such advocacy is clearly not “hate” speech. However, in Nazi Germany that certainly would be “hate” speech because it undermines a state aim. Restrictions on speech – even when laudatory – result in the “soft despotism” predicted by de Toqueville in “Democracy in America”. Curbing speech akin to the Rev. Phelps might make us both feel better about our community, but it remains a “soft-despotism” nonetheless.

    A secondary problem with codifying hate speech arises when we consider context. If I went about using the N-word to describe African Americans it could very well lead to distress. Yet, Ice Cube saying precisely the same thing does not lead to that result. Are we to live under a government wherein he can write those songs because he shares the same skin pigmentation with those ostensibly offended? And were I to sing along with his records, am I to now be prosecuted for “hate speech”? Does this mean that only myself and those similarly situated can say derogatory things about Irish-Catholic, Costanza-esque nitwits?

    Any speech code necessarily derives from protecting the listener. A vast majority of people might find Lenny Bruce hilarious, but do we deem his act “hate speech” because a minority were offended or felt threatened by it? Political speech is often necessarily offensive. Free marketers are highly offended by a vigorous defense of socialism and vice-versa.

    Because it is impossible to legislate against the impact of a citizen’s speech on the listener, speech codes are not only despotic, they are useless. Again a few examples: shall we ban Zappa’s “Flakes” or “Stick Together” due to their blatant anti-unionism? What about scrubbing “Masters of War” from the Dylan catalogue because some idiot might shoot the CEO of Haliburton? John Lennon’s assassin carried with him a dog-eared, underlined paperback copy of “The Catcher in the Rye”. Effect upon the listener is an enormously dangerous way to regulate speech.

    In order to fully appreciate First Amendment protection, one must first emancipate themselves from the superstition of that which is legal is that which is sanctioned. These are mutally exclusive propositions. The value of any proposition, Justice Oliver Wendell Holmes argued, is found in the “marketplace of ideas”. He eloquently averred, “When men have realized that time has upset many fighting beliefs, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of truth to get itself accepted in the market, and that truth is the only ground upon which their wishes can be carried out. That, at any rate, is the theory of our Constitution.”

    I’d like to be in proximity to the Rev. Phelps the day the United States fully recognizes Gay Rights so that I might witness his “truth” in the clearance aisle of the marketplace of ideas. While this may take longer than a speech code, it is far more enduring.

  3. peashoot

    Three things:

    [1] It is not clear that the First Amendment protection of free speech and the Supreme Court rulings to protect it (e.g., as you believe the Westboro case demonstrates that the Supreme Court has done) illustrates your point that the legality of free speech is mutually exclusive from the sanctioning of free speech. I think you mean that the fact that the law protects free speech does not necessarily mean that the upholders of the law—the Supreme Court justices, lawyers, judges, etc—sanction it. And by “sanction” you seem to mean “approve.” I could be wrong, as sanction is a rather Janus-faced word. In any case, it does not matter if the legal folk sanction the type of speech they fight to protect. Even if they do not. The fact that X, Y, or Z type of speech is legal means it is sanctioned for someone. So, this ruling very much does mean that the speech of the Westboro Baptist Church is “sanctioned,” in that the Supreme Court ruling, ultimately approves the Church’s behavior. The Supreme Court in effect says that the law in this case serves as a provision that authoritatively supports a certain type of action and speech and thus administers reward – the right to picket using the language they did – and if it did not it would enact a penalty for their disobedience. That’s the definition of the word “sanction,” is it not?

    [2] To piggyback on point 1, you cite O. W. Holmes about the legality-sanction relationship. He is an excellent example of why the law fails as many people as it serves on the issue of free speech. There is no “free trade” in the “marketplace of ideas” in this country, nor has there ever been. For folks like Holmes, of course there was, and for folks like you and me, of course there is. The marketplace of ideas is a privileged, boutique place that requires a great deal of cultural capital to enter and share one’s wares. The fact that Holmes didn’t acknowledge or see this is precisely the problem with the standard attack on attempts to enact laws against hate speech in this country. What’s more, hate speech is not “just words” – and this is why the Zappa Crossfire example was perhaps the wrong thing for me to bring up earlier. Nor is it about the impact of the words on the listener, and so the banning of explicit lyrics is not really germane when it comes to hate speech, as I understand it. Hate speech is about intent and it is about power and authority. Our laws, based on the little I know of them, do prosecute people on the basis of their intentions, and, again speaking as a non-lawyer, I think this is what any hate speech law would require. Moreover, hate speech is language that is not merely meant to be offensive – e.g., “broken hearts are for assholes” and “you’re an idiot” – but to harm, incite violence, and the like. This requires a lot of unpacking that I don’t have time for now. But I will say this: your example of you saying the N-word and Ice Cube saying the N-word in the US is a poor example. It is not a fair comparison. Your saying the N-word represents a history of power and authority of subjugation over others that has the potential to threaten the safety of others, whereas Ice Cube’s saying of the word represents something entirely different, e.g., the reclamation of power that’s been out of the hands of African Americans in this country. The same thing can be said of the word “queer” – and indeed the term carries much of the same historical usage, in different communities of course, that the N-word does. The critical point is the intention of the speech, not just the words. So, to use your example, if someone shoots the CEO of Haliburton after listening to Dylan’s “Masters of War,” Dylan should not be charged with a crime, but the person who shot the CEO of Haliburton should be, UNLESS someone can prove that Dylan wrote the song with the intention of making someone shoot someone in a position like the CEO of Haliburton. The incident at Rutgers and Tyler Clementi’s subsequent suicide this past summer is a good illustration of hate speech and why just words – collections of letters – are not simply the issue. Were the Twitter postings by Clementi’s roommate about Clementi’s homosexual experience “just words”? There’s a history in this country of anti-homosexuality that makes gay people fear for their safety and livelihood. The Twitter remarks that Clementi’s roommate posted were not just words, but rather they were powerfully loaded words strung together with the intention of aggressively pitting a long, violent, and psychologically fraught history of abuse against this young college freshman. And the result was tragic. The words were hateful speech and they were clearly dangerous. I can’t see how the Westboro Baptist Church speech is any less hateful, or any less dangerous.

    [3] In terms of the legalese you’ve presented, I am now even less convinced than I was the other day that “hate speech” is any more fluid than “the tort of Intentional Infliction of Emotional Distress (IIED),” and therefore can’t understand how you can criticize one and uphold the other on the basis of precision and/or clarity and denounce the other on opposite grounds.

  4. wildbillyscircusstory Post author

    You make some interesting points, so I’d like to reply.

    Regarding mutual exclusivity, I agree “endorse” would have been a much better word than “sanction”. But I stand on my original point: just because you have a right to say it, doesn’t mean the law endorses your view. You have the right to say America is the most violent, racist, imperialist country in the history of mankind – but the government does not subscribe to that argument. You are correct that this system does “reward” many who are unworthy, but that is a natural result of living in a free society. I concede it is flawed, but view it as a better result than the alternative.

    Your point on Ice Cube and the N-word is well taken, but I think it also bolsters my argument. Most whites avoid those terms precisely because of the marketplace of ideas -a societal recognition that those words are not beneficial and serve no rational purpose. This attitude derives not from judicial/legislative fiat about what we may or may not say but rather from a cultural disowning of those words learned in the marketplace. If I may inquire, what of Cube’s use of terms like “bitches, ho’s” or gratuitous references to “pimping”? Doesn’t this “represent a history of power and authority of subjugation over others that has the potential to threaten the safety of others” as you put it?

    The Rutgers case is tragic. As I recall the facts, these fellows posted video of his sexual encounter and made it available to a large part of the campus community. This is unprotected speech. I don’t know the content of the Tweets, but assuming the worst, they’d have no protection either because they were direct assaults. It’s hard to distinguish the personal from the political, but arguing against “legalized” homosexuality is wholly different from harassing one individual and our courts recognize this distinction. Inasmuch as what those students did constitutes unprotected speech, your example fails; theirs is not a First Amendment issue.

    Finally, I sought no comparison between the fluidity of “hate speech” and the tort of IIED. I agree, these are both highly fluid concepts. It should be noted that IIED is one of the most enormously challenging cases to prove precisely because of that fluidity and those cases are quite rare. But the distinguishing factor between the two is the presence of the state. IIED is an action between two citizens; laws curbing First Amendment protection fundamentally alter the balance between the individual and the state.

    I personally will err on the side of freedom of expression, no matter how much I hate what I’m hearing.

    1. peashoot

      You wrote: “Most whites avoid those terms precisely because of the marketplace of ideas -a societal recognition that those words are not beneficial and serve no rational purpose. This attitude derives not from judicial/legislative fiat about what we may or may not say but rather from a cultural disowning of those words learned in the marketplace.”

      My point is that these two areas — the judicial and the cultural — ought to be connected, and from what I’m hearing from you it sounds as though they might be in some cases but they might not be in others. Seems to me that the problem with a Constitutional protection of so-called “freedom of expression” is that inevitably a blanket guarantee of freedom for all types of expression — given the US’s history of oppression (against women, too), divisiveness of religion, racism, and the like — will naturally violate, if not directly threaten, many people’s right to have a safe and secure life. This strikes me as a problem. It is not about the words or the expressions per se, but about the motivations and effects of the words and expressions, and it is based on a history of violence that is clear and well-documented. Michel Foucault once said something like, the only guarantee of freedom is freedom, and it sounds as though you are saying more or less the same thing here regarding free speech. But we must also ask in this (and every) situation, freedom for whom? Who benefits and who loses from the granting of free speech? It’s not all thumbs up.

      We have obscenity and defamation laws after all, why can’t there be laws that punish “hate speech”? If you drop your pants in the middle of a crowded playground, you’d be arrested, not lauded as a performance artist. I don’t see why violating and harming the psychological and emotional welfare of children (and adults) in this instance is unacceptable by law but influencing children (and adults) about hating homosexuals or certain races or religions is acceptable.

      And finally, I question whether, as you intimate, totalitarianism is the result of imposing laws against certain types of speech in our society. Other non-totalitarian and democratic countries in the world today have such laws — e.g., India, Poland, France, Belgium, Denmark, South Africa, and many others.

  5. Pingback: Snyder v. Phelps, Redux | Eat My Peashoot

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