As previously reported, the Supreme Court decided Wednesday in favor of dismissing the monetary judgement against the Westboro Baptist Church. This piece is light on commentary and heavy on explanation, though, so it could be considered a complete failure. My hopes in writing this is to give some more specifics about the Court’s reasoning so as to encourage a good conversation about the decision.

What Happened?

In an 8-1 decision, the Supreme Court found that the hate speech near military funerals that lifted the Westboro Baptist Church into infamy is protected by the First Amendment. “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,” Roberts wrote in his opinion for the Court. He was joined by Breyer, Kagan, Sotomayor, Thomas, Scalia, Kennedy, and Ginsburg, with Breyer writing a concurring opinion. Alito was the only dissenter.

For those not familiar with the case: U.S. Marine Lance Corporal Matthew Snyder was killed in an accident in Iraq, and the Westboro Baptist Church picketed Matthew’s funeral with signs including the following: “America is doomed,” “You’re going to hell,” “God hates you,” “Fag troops,” “Semper fi fags” and “Thank God for dead soldiers.” Later, WBC posted on their website that Matthew’s death was because of how he was raised by his parents (as a Catholic), and that they taught him to defy God and raised him to be “for the devil.”  Matthew’s father sued Fred Phelps, the leader of WBC, two of Phelps’s daughters, and the church itself (collectively). In a jury trial, WBC was held liable for intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. Mr. Snyder was awarded $5 million.

The Phelps crew appealed, and the lower court verdict was overturned by the Fourth Circuit Court of Appeals. Mr. Snyder appealed to the Supreme Court, where the case came down to these issues: whether previous SCOTUS First Amendment decisions prohibiting the awarding of damages to public figures for the intentional infliction of emotional distress applies to this case (an issue that focuses on private parties/matters v. public parties/matters), and whether an individual attending a family member’s funeral constitutes a “captive audience” who is entitled to state protection from unwanted communication. The Court decided WBC’s favor on both questions.

Matters of Public Concern and Intentional Infliction of Emotional Distress

The Court was mostly concerned with the issue of “matters of public concern,” which the Court hasn’t really narrowly defined; however, the general rule is that speech is of public concern when it is of general interest, value and concern to the public, or when it’s “fairly considered” to be related to things concerning the community (including political and social matters). The fact that the speech is controversial or hurtful has no bearing on whether it is about matters of public concern. Looking at the content, context, and form of the speech, the Court determined that the speech was public, not private, in nature.

I thought this was a particularly interesting area of discussion, because the argument against this being of public concern was that some of the signs were specifically about Mr. Snyder’s son. However, Roberts wrote that just because some of the placards were related to a particular individual, the general and dominant theme of the demonstrations were about matters of concern; the placards addressed issues of public concern,  and Westboro was expressing its views on these matters. None of the placards were about Matthew, specifically, even though the context of picketing near his funeral made the placards appear to be more targeted at him at the time.

There was also a reasonable time, place and manner issue at play here, because the Court recognized that even protected speech is not granted the same degree of permissibility at all places and times. Unfortunately for Snyder, there was no law in effect that prohibited funeral picketing (and any law of that nature has to be content-neutral). The WBC protesters contacted the police prior to the demonstration, complied with police guidelines regarding where they could picket, and they were not unruly while demonstrating. The demonstration was held 1,000 feet from the church, under police supervision.

Now, one might argue that even using protected speech can be used to cause the intentional infliction of emotional distress (IIED), but the Court said that a jury cannot decided that the “outrageousness” of the picketing (‘outrageous’ being necessary for the state’s IIED law) overrides the special protections granted to speech on matters of public concern. If the picketing had disrupted the funeral, the outcome could have been different, but it was clear that the message, and not the protest itself, was the cause of the emotional distress. Furthermore, finding the WBC’s actions to be “outrageous” here is problematic. It’s clearly a subjective issue that the jury decides based on their own views, so when applying this standard to speech, there is a danger of using IIED to suppress expression that people might find abhorrent and disturbing. It comes down to a greater good principle: “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Thus, the Court dismissed the verdict for Mr. Snyder on IIED.

Intrusion Upon Seclusion, Civil Conspiracy, and Captive Audience

While the Fourth Circuit didn’t weigh the other two charges independently of IIED, the Supreme Court took the opportunity to do so. Mr. Snyder argues that even if the Phelpses were protected by the First Amendment, they were not protected from liability for intrusion upon seclusion because Mr. Snyder was a captive audience at Matthew’s funeral. The idea behind the captive audience doctrine is that, generally, the Constitution does not permit the government to decide what kinds of speech require protection for the unwilling listener or viewer–people who don’t want to see or hear things they find offensive have the burden of avoiding those things. The government can get involved if there is enough evidence that “substantial privacy interests are being invaded and in an essentially intolerable manner.” Examples of when SCOTUS has applied this doctrine include a case about a statute allowing a homeowner to restrict offensive mail from being delivered to his home, and a case involving an ordinance that prohibited picketing in front of or ‘about’ a person’s residence.

Here, the Court said found that WBC was “well away” from the funeral service. Mr. Snyder said that he could see just the tops of the placards when he was en route to the funeral, and there was no other indication that the picketing disrupted the actual service. Therefore, the captive audience doctrine does not apply, and the Court set aside the verdict on intrusion upon seclusion. Since the First Amendment protected WBC from not only IIED and intrusion upon seclusion in this matter, there is no basis for the claim of civil conspiracy, as the conspiracy relied upon the allegedly unlawful nature of WBC’s activity.

What This Means

Roberts stressed that this holding is narrow. First Amendment cases are very fact-dependent and complex, so the Court tries to tread delicately when reviewing them. Roberts agrees that WBC’s picketing is hurtful, and that it does not substantially contribute to the public discourse, but since WBC addressed matters of public import, did so on public property, carried out their protests in a peaceful manner that fully complies with the guidance of officials, and didn’t actually disrupt the funeral service, WBC’s speech in this matter is protected by the First Amendment.

The narrowness of this decision is extremely important here. I believe it is the totality of the situation that led to this outcome, which means that the decision could prove to be difficult to applied outward. Justice Breyer, in his written concurrence, pointed out that upholding the application of these tort laws in this circumstances would punish WBC for communicating its viewpoints on matters of public concern “without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”

Problems With The Decision?

Justice Alito basically thinks the majority is nuts. He feels that WBC mixed protected speech with unprotected speech (specifically focusing on what was posted on WBC’s website that was specific to Matthew and his parents) and that the decision should have dealt with the two pieces separately, as often occurs in cases involved defamatory statements mixed with nondefamatory statements. Alito feels that WBC’s motivations–“to increase publicity for its views”–did not bring their attacks upon a public figure into contributory statements to a debate on matters of public concern.

Alito also feels that the public location argument is lacking, although I have to disagree with his reasoning on this one. “A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was],” Alito wrote, and I think this analogy is unsuitable. The argument regarding the public location is not a standalone argument–it was combined with proximity. His analogy is inept because a physical assault requires a certain degree of proximity, whether it be to the assailant’s body or to the weapon used. It was established that Mr. Snyder was not able to see or hear anything that WBC was expressing at their location at the time of the service, so Mr. Snyder was not ‘assaulted’ by their speech; likewise, using Alito’s analogy, if person A were to angrily throw a baseball bat in person B’s general direction, and person B was significantly outside the range of impact, person A cannot be charged with the assault. Attempted assault, perhaps, but I do not believe attempted infliction of emotional distress actually exists (I could be wrong, though). The argument Alito appears to be making is that impact is impact, and verbal assaults on the conduct or character of Matthew should be treated like a physical assault when it comes to this matter. However, this circles back to the problem of finding sufficient evidence that the placards at the scene were specifically about Snyder. Since WBC uses those signs for pretty much every protest they stage, it’s a tough sell.

Alito stresses the importance of recognizing the special nature of funerals. He feels that IIED should cover this situation largely because of the significant impact and harm these actions caused, and could cause in the future, to the friends and family of the deceased. “Allowing family members to have a few hours of peace without harassment does not undermine public debate,” Alito wrote. “I would therefore hold that, in this setting,the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.”

The rest of his dissent addresses issues that were covered by the Fourth Circuit but not discussed by the majority’s decision. His discussion on those issues, along with the rest of the decision, can be found here.

What I Think

Personally, I’m torn. I am mostly in agreement with the majority, though I think perhaps it would be wise for states to make it much more difficult for people to picket near funerals. My biggest issue concerns the website entry, which, if not considered defamation, could and should be covered by IIED, I think. Alito discusses this in the part of his dissent I didn’t detail, but essentially the Fourth Circuit relied upon a couple of prior SCOTUS decisions, and I think perhaps they were not used appropriately. Specifically, the famous Hustler Magazine v. Falwell case, which involved claims of IIED and defamation. A number of differences were at play in the Hustler case, including Falwell being a public figure and the nature of the publication (a caricature, in this situation). The Court found that IIED could not be used to protect a public figure from hurtful speech, basically, because this would have a severe impact on satirists and the like, who often use embarrassing situations, certain “unfortunate physical traits,” etc. to discuss or criticize public figures. The Court felt that the falseness of the hurtful speech could not be separated from the IIED claim for public speakers because of these reason.

The Hustler decision, however, did not extend to private figures, and that’s the rub. Should it matter whether or not the statements made by WBC regarding Matthew and his parents can be proven to be false? The statements made cannot be proven either way because they are surrounded by the shroud of mystery that accompanies religion. Am I allowed to put up posters saying “God knows Person X is a rapist”? And why should the falseness of the statements matter, in terms of IIED? If I were to expose personal secrets of Person X in a highly public manner with the intention to inflict emotional distress, should Person X not be protected by that tort law? Justice Breyer, in his concurrence, does not believe that to be the case–that is, he thinks this decision does not preclude Person X from being protected. Then why is ‘demonstrably false’ an issue, and why should hyperbole matter when dealing with private figures? Honestly, I don’t know that the Court sufficiently dealt with this issue.

Wrapping Things Up

Westboro Baptist Church survives to see another day of hateful picketing and disgusting rhetoric. They probably see this as God’s way of letting them know they working on his behalf. I do have to say, though, that Fred Phelps is no fool: the single most powerful thing these guys have going for them is that they know the law, and they utilize this knowledge accordingly. They comply with all local laws regarding picketing and assembly. They notify local law enforcement. They are peaceful and nonviolent. They walk right up to the line and they set-up camp. I don’t remember how many lawyers are in the family, but here’s an idea of how well they know the law: one of their own, Margie Phelps, her family’s case in front of the Supreme Court.

Perhaps the lesson we could all learn from this is to start ignoring these people. They thrive off the attention they get. It validates them. It gives them the drive to do more. Counter-protests may work, depending on how they are done (nonsensical protests that drown them out/distract from them or protests that raise money to support the causes that WBC hates are a couple of examples that might have been effective, if I recall correctly), but the more people get angry at them for being so awful, the more they seem to appear. I knew about WBC a number of years ago, and there were never this prevalent (at least, I don’t remember them being anywhere near as well-known). I feel like not only has their coverage been increased, but also their appearances. Perhaps that’s just a perception issue, and I’m totally wrong, but since they are typically protected by the law, I think that it might be time to just try to snuff them out with silence–our silence.

I want to end this by saying that this was my takeaway from what I read of the decision. If there are any mistakes, please let me know and I will fix them. And if I’m totally off on my legal analysis in any way, please do let me know and I’ll try to either correct or clarify.

UPDATE: After this incident with Matthew’s funeral, Maryland passed a law requiring picketers to stay at least 100 feet away from a funeral or funeral precession. This law is content-neutral. However, in light of the Supreme Court’s decision on Wednesday, WBC plans to challenge this (and other) anti-picketing laws. I think the Phelps family might have a harder time with this case, and it’s probably more of a publicity stunt than anything else. Still, if they’d like to waste their money on it, that’s their prerogative.