Will distress trump the First Amendment right to free speech?

By HARRIET ROBBINS OST   |   April 4, 2010 at 4:30 AM   |   0 comments

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Next fall, the U. S. Supreme Court will hear the case of Snyder vs. Phelps, in which it's possible the speech-related practices of an obnoxious group will be curbed -- but at the price of some new First Amendment fetters.

Members of the Westboro Baptist Church picketed the March 10, 2006, funeral of Lance Cpl. Matthew Snyder, a U.S. Marine who was killed a week earlier in Iraq. They displayed placards reading, "God hates you," "Thank God for Dead Soldiers" and "Semper Fi Fags."

The deceased soldier's father, Albert Snyder, sued the church and its founder, the Rev. Fred Phelps, in a Maryland federal court for defamation, invasion of privacy (intrusion on seclusion and publicity given to private life) and intentional infliction of emotional distress.

In pretrial orders, the judge found for Phelps on the defamation and publicity given to private life claims, saying the extreme comments were meant in terms of religious opinion. The jury heard the remaining privacy and intentional infliction of emotional distress claims and awarded Snyder $10.9 million in compensatory and punitive damages. The judge cut the award in half.

The 4th U.S. Circuit Court of Appeals reversed the verdict and threw out the case on First Amendment grounds. Unlike the trial court, the appellate court looked solely to the nature of the speech and not to the status of the parties as public or private figures. (A private figure has an easier time proving speech-related harm.)

The 4th circuit characterized the Phelps picketers' speech as "hyperbolic rhetoric" for the purpose of igniting public debate. The appellate court said: "A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts. In addition, the words on these signs were rude, figurative, and incapable of being objectively proven or disproven. Given the context and tenor of these two signs, a reasonable reader would not interpret them as asserting actual facts about either Snyder or his son."

Phelps's picket signs, therefore, were protected by the First Amendment because they were found to have been a series of generalized -- albeit obnoxious -- rantings not specifically directed at Snyder or any other particular individual, they didn't disrupt the funeral and they pertained to matters of public concern, such as controversial issues like gay rights and the wars in Iraq and Afghanistan.

Snyder appealed to the Supreme Court, which set forth three issues to be addressed:

-- Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress through precedent applies to a case involving two private persons regarding a private matter;

-- Whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly clauses, and

-- Whether an individual attending a family member's funeral constitutes a "captive audience" entitled to state protection from unwanted communication.

Regarding the Supreme Court's first question: The most important precedent in this matter is likely to be the 1988 case of Hustler vs. Falwell. The high court ruled the Rev. Jerry Falwell, a televangelist and public figure, could not prevail in an infliction of emotional distress action against Hustler magazine, which parodied Falwell and implied he'd had sex with his mother.

It's possible the high court has taken on Snyder to resolve an issue left open in Hustler: Whether the First Amendment protects at-issue speech in intentional infliction of emotional distress cases where the plaintiff is not a public figure.

If the Supreme Court does intend such a resolution, it seems it will return to the trial court's threshold analysis of the plaintiff's status and will disregard the 4th circuit's sole focus on the nature of the speech at issue.

Phelps maintains the funeral was a public event, rendering Snyder a public figure, but the high court has taken the case on the basis that it was a private event. Snyder will argue he is a private figure and that Hustler applies only to public figures.

If the Supreme Court accepts Snyder's argument, only then would it look to the nature of Phelps' actions to determine whether they were injurious to a private figure. A private figure much more easily can prove a speech-related injury than can a public figure; Phelps's picketing may be found not to be protected by the First Amendment.

It's unclear why the Supreme Court raised the second two constitutional questions since they are not applicable to the facts in Snyder.

For the second question, regarding freedom of speech trumping freedom of religion and assembly: Even if the funeral, a religious ritual involving assembly, were determined to have been held in public, the Phelps picketers were far enough away not to disrupt the ceremony.

Regarding the third question, on whether a funeral attendee is a captive audience entitled to protection from unwanted communication: Snyder couldn't have been a captive audience since he had said he didn't know of the Westboro Church members' picketing while he was at his son's funeral.

The Supreme Court most likely would focus on the first of its posed questions -- the only one applicable at this point -- but a startling revelation occurred last week, many weeks after the high court agreed to hear the case, that may suddenly make the second two issues relevant.

On March 26, the 4th circuit ordered Snyder to pay the Westboro Church's court costs of more than $16,000.

Snyder was interviewed Thursday on ABC's "Good Morning America" regarding the payment order. During the interview, he said things that contradicted the statement of facts in the appellate court's opinion. Snyder said he had known a few days before the funeral of a letter the Phelps's group sent to media and law enforcement outlining its picketing plans.

"We had a SWAT team, a Winnebago set up as a command center, and state, county and sheriff's police" at the ready, Snyder said. He said the picketers were approximately 30 feet from the entrance to the church and the family went through a service entrance to avoid them.

What's the reason for the factual discrepancy?

The Supreme Court articulated its three issues when the facts -- which the appellate court said were undisputed -- provided Snyder knew nothing of the picketing until after the funeral.

Snyder's statements Thursday could throw a monkey wrench into the proceedings.

The Supreme Court could remand the case to the trial court in light of the disclosure.

Regarding the issues the Supreme Court had already set forth, the intentional infliction of emotional distress matter could be treated either way: Because Snyder knew of Phelps's intentions prior to the funeral, Snyder could be seen as a captive audience suffering the emotional distress of knowing picketing was occurring at the very time of the funeral (issue No. 3), or he could be seen to have had a responsibility to use that prior knowledge to try to mitigate the emotional damage the upcoming picketing might cause him.

If the church is found to have disrupted the funeral (a religious event and assembly) because of Snyder's awareness of and injury due to the picketing (speech), then the answer to issue No. 2 is "no": Free speech does not outweigh the freedoms of religion and peaceful assembly.

Because Snyder's recent statements are in direct conflict with the facts outlined by the appellate court, it's more difficult to predict what the Supreme Court will do.

The law is clear: Picketing and protests have virtually free rein under the First Amendment. The high court, therefore, may have taken on this case due to an interest in limiting first amendment protection of offensive and potentially emotionally injurious speech-related practices where the plaintiff is a private individual.

Topics: Fred Phelps
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