In its recent decision in Snyder v. Phelps, Case No. 09-751 (U.S. 2010), the Supreme Court reiterated the role of the First Amendment in the realm of privacy. Deciding a case brought against Fred Phelps and the Westboro Baptist Church related to funeral protests in Maryland, the Court held that 1) a claim for intentional infliction of emotional distress was barred by the First Amendment, 2) a claim for intrusion upon seclusion was barred because the protest did not interfere with the funeral, and 3) a claim for conspiracy was barred because the other tort claims had failed.
Phelps and his congregation at the Westboro Baptist Church, located in Topeka, Kansas, have become well known over the past two decades for protesting and picketing at funerals with signs such as “Thank God for Dead Soldiers,” “Thank God for IEDs” and “God Hates You.” They believe that God hates and punishes the United States for its tolerance of homosexuality and often express that view by picketing at military funerals. Among the funerals protested by Westboro was the funeral of deceased U.S. Marine Matthew Snyder. The Snyder family sued Phelps and the church for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury awarded the family $2.9 million in compensatory damages and $8 million in punitive damages (reduced to $2.1 million by the trial court). On appeal, the Fourth Circuit reversed the judgment.
The Supreme Court affirmed the Fourth Circuit’s ruling by an 8-1 margin, holding that the protests involved matters of public concern and therefore constituted First Amendment-protected speech. In an opinion written by Chief Justice Roberts, the Court acknowledged that Westboro’s speech was hurtful, but said that it was nonetheless entitled to protection under the First Amendment: “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.”
In dissent, Justice Alito argued that the funeral protest was not protected speech because it targeted a non-public figure, a father burying his son, and because the protests implied that his son was gay. For the majority, Justice Roberts observed that even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.
What it means
Although the issue of picketing at funerals is largely unique to Phelps and his church, the Court’s opinion may impact the application of privacy torts to more traditional forms of speech. The decision reinforces that speech in a public place on a matter of public concern is entitled to “special protection” under the First Amendment. In analyzing the claim for intentional infliction of emotional distress, the court held that the “outrageousness” standard given to the jury was “highly malleable” and “inherent[ly] subjective.” As such, the jury’s finding of outrageousness was not sufficient to overcome the special protections of the First Amendment. In essence, the Court held that core First Amendment speech — no matter how offensive — cannot rise to the level of “outrageous” conduct for the purposes of intentional infliction of emotional distress.