The U.S. Supreme Court last week reaffirmed the First Amendment right to free speech trumps most other interests in a ruling that was more significant for its drama than its legal impact.
The case of Snyder vs. Phelps concerned a father, Albert Snyder of York, Pa., who became distraught because a group of congregants from the Westboro Baptist Church of Topeka, Kan., picketed the funeral of Snyder's son, Lance Cpl. Matthew Snyder, a U.S. Marine killed in Iraq in March 2006.
Holding signs and chanting slogans such as "Semper Fi Fags," Westboro members say American soldiers die in battle because the United States tolerates homosexuality.
Snyder's lawsuit against the church and its leader, Fred Phelps, claimed invasion of privacy and intentional infliction of emotional distress.
The district court ruled in Snyder's favor; the jury awarded him $11 million in damages, but the judge cut the amount to $5 million. The 4th U.S. Court of Appeals, however, ruled in favor of the church, primarily on First Amendment grounds.
On Wednesday, the Supreme Court, in an 8-to-1 decision penned by Chief Justice John Roberts, affirmed the 4th Circuit's judgment.
Consistent with its disposition of free-speech cases in recent years, the court Wednesday declined to add to the list of exceptions to unfettered communication.
Egregious and deeply troubling though Westboro's actions were, the torts (personal injuries) of intentional infliction of emotional distress and intrusion upon seclusion, the latter of which is a part of invasion of privacy, are not compelling enough to rein in the church members' speech in the same way defamation, child pornography or falsely shouting "Fire!" in a crowded theater may be prohibited.
The high court said the case hinged on whether Westboro's signs constituted speech of public or private concern, and ruled "Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials."
"The placards highlighted issues of public import -- 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 Catholic clergy -- and Westboro conveyed its views on those issues in a manner designed to reach as broad a public audience as possible," the high court said.
The court noted Westboro obeyed the law in exercising its right to picket the funeral, and its public message overrode any emotional injury Snyder may have sustained.
Further, Westboro did not intrude on Snyder's right to privacy because church members stayed about 1,000 feet from the funeral and Snyder saw only the tops of their signs. It wasn't until about a month later, when Snyder surfed the Internet and came upon Westboro's Web site, that he heard the hateful chants and saw the signs' messages he had missed during the funeral.
While the justices were sympathetic to and acknowledged Snyder's suffering, they held firm in protecting the First Amendment.
"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," the majority concluded.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and -- as it did here -- inflict great pain. 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."
Justice Samuel Alito, the sole dissenter, said unprotected speech, even when mingled with permissible words, is still actionable.
"The First Amendment allows recovery for defamatory statements that are interspersed with non-defamatory statements on matters of public concern, and there is no good reason why respondents' attack on Matthew Snyder and his family should be treated differently," Alito said.
The majority, however, took the opposite position, saying, "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."
The court's statement here is vulnerable to a "slippery slope" challenge: At what number does "a few" signs become too many? Would enough signs have changed the very nature of the content of Westboro's message? Would a greater number of signs than the number actually present near the funeral have constituted an attack on a private individual rather than be deemed political commentary directed to the general public?
Further, pitting private individuals' claims of intentional infliction of emotional distress or intrusion upon seclusion against the Supreme Court's newly articulated speech-content standard of "overall thrust and dominant theme" will mean lower courts must struggle with the language and contradict each other in their attempt to demystify such a peculiar quantification -- until the high court speaks on it again in a similar case.