Category Archives: protest of military funeral

Does the First Amendment protect the speech of church members protesting the funeral of an American serviceman?

In a decision on March 2, 2011, the United States Supreme Court held that a protest by church members at the funeral of an American serviceman was speech protected by the First Amendment.  Snyder v. Phelps, No. 09-751, 2011 WL 709517 (2011).

Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq.  Fred Phelps, founder of the Westboro Baptist Church (“Westboro”), learned the location of the funeral in Maryland and planned to protest that funeral.  For approximately 20 years, Westboro members made it a point to picket at military funerals to express their dissatisfaction with the United States’ tolerance of homosexuality.  Westboro members picketed at approximately 600 funerals before the funeral for Matthew Snyder.

On the day of the funeral, Westboro members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy and Matthew Snyder’s funeral.  Westboro members carried signs that stated, among other things, GOD HATES THE USA/THANK GOD FOR 9/11; THANK GOD FOR DEAD SOLDIERS; YOU’RE GOING TO HELL; and GOD HATES YOU.  Westboro notified the authorities in advance of its planned protest and complied with all police instructions in staging its protest.  The protest took place approximately 1,000 feet from the church; several buildings separated the picketers from the church; none of the protesters entered the church or went to the cemetery; none of the protesters yelled or used profanity; and there was no violence associated with the picketing.  The funeral procession passed within 200 to 300 feet of the picket site but Snyder’s father, Albert, testified he could neither see the signs nor read what they said.  He did not learn the content of the signs until he watched a news report later that night.

Albert Snyder sued Phelps and Westboro in the United States District for the District of Maryland for defamation; publicity given to private life; intentional infliction of emotional distress; intrusion upon seclusion; and civil conspiracy.  Westboro made a motion to dismiss on the ground that Westboro’s speech was protected by the First Amendment.  The District Court dismissed Snyder’s claims for defamation and publicity given to private life, but permitted a trial on the remaining claims.  The jury returned a verdict in favor of Snyder, holding Westboro liable for compensatory damages of $2.9 million and punitive damages of $8 million for intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy.

Westboro appealed the jury’s verdict to the Court of Appeals which disagreed with the District Court and held that Westboro’s speech was protected by the First Amendment.  The Court of Appeals reasoned that Westboro’s statements were entitled to First Amendment protection because they were on matters of public concern, were not provably false and were expressed solely through “hyperbolic rhetoric.”  Snyder sought to appeal that decision to the United States Supreme Court.

The Supreme Court decided to hear the case and affirmed the decision of the Court of Appeals.  Per the Supreme Court, the issue was whether Westboro’s speech was protected by the First Amendment.  The answer to that question depended on whether the speech was “of public or private concern, as determined by all the circumstances of the case.  Speech on matters of public concern  . . . is at the heart of the First Amendment’s protection . . . Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”  Id. at *5.

The Court analyzed the speech – the use and content of the signs – of Westboro and determined that the issues raised by them – the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military and scandals involving the clergy – were matters of public importance.  The fact that Westboro’s speech took place at a funeral did not change the analysis; the speech still dealt with matters of public concern no matter where it took place.

There was also no evidence of a pre-existing conflict between Westboro and Matthew Snyder that might suggest Westboro’s speech on public matters was intended to mask a private attack on Matthew.  The Court also noted that the protest took place upon public streets, which are “the archetype of a traditional forum” having been used for centuries for public assembly and debate.  Id. at *8.  As a result of this analysis, the Court set aside the jury verdict in favor of Snyder for intentional infliction of emotional distress.

The Court similarly set aside the jury’s verdict in favor of Snyder on the claims of intrusion upon seclusion and civil conspiracy.  Snyder argued that as a “member of a captive audience” at his son’s funeral he was unable to avoid Westboro’s speech.  The Court disagreed and refused to extend the definition of a “captive audience” to include Mr. Snyder under these facts.  Here, Westboro stayed “well away” from the memorial service; Mr. Snyder could only see the tops of the signs and could not read their contents while driving to the funeral; and there was no evidence the picketing interfered with the funeral in any way.  Id. at *10.  As a result, Snyder could not demonstrate that he was a member of a captive audience.

In summary, the Court stated,

Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.  The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech . . . 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. 

Id. at 10-11.

Download Snyder v. Phelps, No. 09-751, 2011 WL 709517 (2011)

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