Wednesday, March 2, 2011

Tyranny of the majority?- Supreme Court Upholds Westboro Church's 'Free Speech' Rights

The Supreme Court, in the case of Snyder v. Phelps, et al, yesterday upheld the right of the members of the controversial Westboro Baptist Church to conduct their "public protests" of military serviceman's funerals free from the threat of civil lawsuits by private individuals.

The Kansas-based "church" group had targeted the Snyder family's private funeral for their son Matthew A. Snyder, a Marine Lance Corporal killed in Iraq in 2006, in order, according to the group, to bring attention to certain national "sins" such as abortion and homosexuality which they claim God is punishing America for in the form of increasing "body bags" returning from the ongoing Afghanistan and Iraq wars.

By an 8 to 1 vote the High Court, in upholding a federal Court of Appeals decision throwing out an eleven million dollar jury verdict against the controversial group for the legal tort of "intentional infliction of emotional distress," conceded the provocative language and "painful" effects of the group's vicious rhetoric against the Synder family but ruled, "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." (download pdf of whole decision by clicking here ).

 In so ruling, the majority honed in on several facts of the case, including that the "Baptist" group had chosen a public thoroughfare for the expression of their "speech," had not trespassed or caused any actual disruption to the funeral itself, and had obeyed all direction of the police and public authorities as to appropriate "time and place" restrictions, (which are permissable restrictions to speech under settled First Amendment jurisprudence).

 Most significantly, the opinion of the court, authored by Chief Justice John Roberts, soundly rejected the premise that provocative and hurtful words alone, (even if they were related to a private family's personal circumstances, as in the Snyder's case), could form an actionable basis for a law suit under the First Amendment so long as that speech primarily addressed "public issues" of import to society at large.  In the Court's words:

 "There is no doubt that Westboro chose to stage its picketing  at  the  Naval  Academy,  the  Maryland  State House, and Matthew Snyder’s funeral to increase publicity for  its  views  and  because  of  the  relation  between  those sites and its views...  The  fact  that  Westboro spoke in connection with a funeral, however, cannot by   itself   transform   the   nature   of   Westboro’s   speech.... '[we]  must tolerate insulting, and even outrageous, speech in order to provide adequate  ‘breathing  space’  to  the  freedoms  protected  by the First Amendment.'  Boos v. Barry, 485 U. S. 312, 322  (1988)...  [and]  the  funeral  setting  does not alter that conclusion."

 However, a vigorous dissent by Justice Samuel Alito revealed a rare split between the Court's Chief Justice and it's last justice appointed by Republican President George W. Bush, (who usually vote together, albeit in more closely divided cases), prompting some initial observations before we get into our assessment and analysis of the opinion itself.  

 First, the lopsided result of the court's ruling shocked many court watchers (including us) who expected a more divided court upon ideological lines. (Though it remains to be seen whether this is a harbinger of things to come and evidences a diplomatic finesse by Chief Justice John Roberts that at one time had been lauded as one of his possible strengths and theorized as one of the reasons that President George Bush bumped his nomination up to the position of Chief Justice upon the death of previous Supreme Court Chief Justice William Rehnquist while Robert's original nomination was still pending).   

 Second, this decision continues the trend of the court towards a robust and expansive interpretation of Free Speech rights presaged by last year's much more controversial decision, Citizens United, which held that the government can't restrict free speech expenditures of groups in the American political process, whether classified as unions, corporations, or non-profit organizations.  (You'll recall this was the decision made famous by the President's 2010 State of the Union address to a joint house of Congress when Obama publicly chastised the High Court by singling out the Citizens United decision for public approbation for ostensibly opening up the American electoral process to the alleged "corrupting influence" of financial contributions from "foreign sources" contrary to U.S, Election law (indeed, who can forget Alito's shaking his head and mouthing "not true" so reminiscent of the shouts of "you lie" by South Carolina Congressmen Joe Wilson during a special address to a joint session of Congress by Obama in Sept. 2009.  As an aside such ominous allusions to never-identified "foreign" sources of influence over the 2010 elections would be repeatedly invoked with reference to the U.S. Chamber of Commerce in the run up to the historic mid-term elections, with no evidence whatsoever provided to support such claims either than or since). 

 With similar flair here, Justice Alito issued a vigorous and well reasoned dissent emphasizing the outrageous conduct of the Westboro Baptists and directly challenging the majority view by distinguishing the court's precedents in that the Snyder's were not "public figures" under Hustler v Falwell, that "this attack was not speech on a matter of public concern," and characterizing the Westboro Baptist church's actions as "part of  a cold and calculated strategy to slash a stranger as a means of attracting public attention." (p. 32, dissenting opinion, Alito, J.)

  Breyer, in a separate concurrence, tried to take a somewhat middle road between the two emphasizing the "narrow holding" of the case and that it "does not hold or imply that the State is always powerless to provide private individuals with necessary protection" from such tactics in a different context, (though we admit we have a hard time imagining a context in which any more emotional distress could be inflicted).
  Which brings us to our own take on all this.  

  At the outset, our initial inclination was to cheer the court's decision.  After all, the ACLP, as an organization dedicated to promoting Constitutional freedom would in most cases support a broad interpretation of the First Amendment that would maximize freedom of speech.  The majority opinion is not badly reasoned or written and has a certain simplicity to it, (especially if one stops there).  Which is why we are probably going to shock the majority of our natural allies by saying, nevertheless, we find both our heart-sympathies and minds drawn to justice Alito's dissent.

 Indeed, while the majority's obvious intention was to paint with a broad brush in order to preserve with a wide swath critical First Amendment rights, we can't help but feel that the majority may have unnecessarily brandished a shotgun here when a flyswatter may have done just as well. 

 In fact, we can easily envision the court ruling in favor of upholding the jury's verdict against the Westboro Baptist "Church" without harming principles of First Amendment jurisprudence; in point of fact courts do it all the time by emphasizing their ruling is only applicable to the "particular circumstances of the case" before it and by distinguishing any prior precedents, (which is the exact tack Alito takes in his dissent, see below).

 While it is true this must be done very carefully to avoid doing violence to important first principles, (especially when dealing with such critical issues as Freedom of Speech), we think Justice Alito's dissent clearly and effectively does the job here.  Indeed, with almost methodical precision at every turn Justice Alito critically examines and successfully refutes the reasoning of the majority and much more coherently, (and convincingly), applies the court's precedents, making this, at least in our view, a much closer case than we might otherwise have expected from an 8-1 decision. 

 Initially, there is ample evidence the majority's holding that the Westboro Church had not "privately targeted" Matthew or the Snyder family or inordinately focused on their private affairs, (as opposed to merely addressing their "speech" towards issues of public importance), was plainly factually incorrect.

 Moreover, in its eagerness to make a statement on the importance of Free Speech the majority's opinion seems to run roughshod over equally important precedents regarding juries as the ultimate fact-finders whose judgments are not to be lightly set aside, and, as Alito points out, the jury clearly found that the Snyder's had been targeted.  Indeed, the majority's ignoring, for purposes of its decision, the "epic" posted on the internet immediately after the funeral-- in which Mr. and Mrs. Snyder are vehemently and directly attacked for giving money to the Catholic church, raising their son Matthew "for the devil," and, "in supporting satanic Catholicism, [teaching] Matthew to be an idolater."--  because the Snyder's lawyers had allegedly not properly "preserved" it for review seems to deny for technical reasons what is obvious from Alito's recitation of the record, (and in any case had been considered and found by the jury).

 Second, as Alito also pointed out, the Snyder's were not "public figures" such that the lower legal standard of "malice or reckless disregard of the truth" could have applied under their Hustler v. Fallwell decision, (even if it properly applied to "Intentional Infliction of Emotional Distress" actions, which Alito rather conclusively shows it does not).

 To the contrary, none of the court's prior precedents preclude prevailing on an intentional infliction claim based on just speech, (as opposed to more invasive actions like trespass, assault, etc.).  Indeed, in Alito's words: "I  fail  to  see  why  actionable speech  should  be  immunized  simply  because  it  is  interspersed with speech that is protected.   The First Amendment  allows  recovery  for  defamatory  statements  that  are interspersed  with  nondefamatory  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." (p. 32, dissent by Alito, J.).

 Nor, according to Alito, should the location of where the distressing speech took place, (i.e., on a public street), or new laws that may protect families from similar conduct by the Westboro group or others in the future preclude recovery of damages for intentional inflection of emotional distress now if all the elements of the tort are satisfied, (which Alito points out the Westboro church abandoned contesting, and was in any case arguably found to have been satisfied, again, by the fact finder at trial).  Again, from the dissent:

 "there  is  no  reason  why  a  public  street  in  close  proximity  to  the  scene  of  a funeral  should  be  regarded  as  a  free-fire  zone  in  which otherwise  actionable  verbal  attacks  are  shielded  from
liability.   If  the  First  Amendment  permits  the  States  to protect  their  residents  from  the  harm  inflicted  by  such attacks—and the Court does not hold otherwise—then the location  of  the  tort  should  not  be  dispositive.    A  physical assault  may  occur  without  trespassing;  it  is  no  defense that the perpetrator had “the right to be where [he was].” See ante, at 11.  And the same should be true with respect to  unprotected  speech.    Neither  classic  “fighting  words” nor  defamatory  statements  are  immunized  when  they occur in a public place, and there is no good reason to treat a  verbal  assault  based  on  the  conduct  or  character  of  a private figure like Matthew Snyder any differently."  (p. 33, dissent, Alito, J.)

 Moreover, we can't help observe that the majority opinion, while claiming that the Snyder's private enjoyment of their son's funeral was not interfered with as the Snyder's "didn't know" about the protest until later in the evening after the funeral had taken place, seems to contradict its own admission that the Westboro Church group, before the protest, had "notified the authorities" (p. 6, opinion, Roberts, C.J.) and in fact prior to the funeral had issued press releases and received media coverage regarding the controversial group's announced intentions to "protest" Mathew's funeral, (p. 23, dissenting opinion, Alito, J.).

  Most damningly, Justice Alito showed the Snyder's met the stringent standards for intentional infliction of emotional distress and that, at best, the church's claims to be merely speaking to matters of grave public concern were in fact merely "cover" for not-too-thinly-disguised personal attacks against the Snyders and their son for being catholic and serving in the military, (p. 31, dissenting opinion, Alito, J.), and, most pernicious, for suggesting, (falsely), that their son was a homosexual and thus deserved God's "judgment," (p. 29, dissenting opinion Alito, J.).

 In short, and however we wish we could conclude otherwise in light of our strongly favoring Free Speech generally, we feel that Justice Alito makes a very convincing case that the First Amendment should not preclude collection of damages for an otherwise proven-to-a-jury claim of intentional infliction of emotional distress and in support of his general assertion that "Our  profound  national  commitment to  free and open debate is not a license for the  vicious verbal assault that occurred in this case."  (p. 23, dissenting opinion, Alito, J.)

 What do you think?  Was the majority right or do you agree with Justice Alito's dissent?  (And relatedly, could the majority's reasoning have been flawed but still have reached the correct outcome?)  In what kind of scenario according to the majority's opinion could you now envision a plaintiff successfully prevailing in a suit for IIED?

 On the other hand, if you agree with the dissent, do you think upholding the trial court's judgment in this case would have undermined Free Speech? Why or why not?  Please register and use comments below to elaborate and add to the discussion or point out anything you think I may have missed. I am particularly curious to know if in spite of the lopsided vote of the court affirming dismissal of the trial court's judgment you agree that the reasoning of the dissent makes this case a closer call than it might otherwise appear from the outcome.   jp


  1. Good extensive exposition. My thoughts fall along the same lines - I'm naturally attracted to the principled clarity of the majority but Justice Alito's view tugs at my sense that the WBC's means of protest does not merit constitutional protection.

    The difficulty I encounter is this: the WBC was demonstrating on matters of public concern in a public place. On its face, this is protected by the Constitution. Should it be left to a jury to decide otherwise?

    Imagine if protesters showed up at abortion doctor George Tiller's funeral to protest "baby killing" (the WBC actually did appear at his funeral). Is it suddenly not constitutionally protected? Is the motive behind the protests drastically changed because Tiller's funeral is used as a platform? How about if the protest is a week later? Or in another city on the day of the funeral? (I use abortion, not because I think it is a more sympathetic example but because such protests are more widely accepted as addressing a public concern - even if abortion doctors are routinely compared to murderers.)

    Juries are granted the power to determine whether an expression is "obscene" and thus outside the bounds of First Amendment protection. But what standard would guide a jury in determining whether a demonstration is outside those bounds? The Court is clearly concerned that the standard would be 'offensiveness.'

    Is it possible to say that an expression is constitutionally protected but one can be sued for exercising that constitutional right?

    Justice Alito simply asks whether the WBC did something that amounted to IIED. He doesn't dwell on the archetypal form of the expression. I wonder if this is sufficient to prevent the trampling of First Amendment rights. I hope I haven't been too persuasive, as I present this contrary argument in order to clarify my thoughts.

  2. Crispian; Thanks for commenting (and visiting!) my blog. Sorry I couldn't reply quicker, but I was busy replying to the scandalous attacks against me on dorf's blog, (as I am sure you are aware). Took me several tries and I know there are some redundancies and typos but I think I got a reasonably streamlined version on dorf, (though we'll see if my posts are still on in the morning or victim again to the "mysterious" censor monster lol).

    As to having been too persuasive, no worries; Even if there were such a thing, unlike some I actually enjoy hearing people's strongest arguments; it doesn't threaten me in the least. (A peek at some of Doug's pointed comments on here I think proves that!) Provided you don't stoop to the kind of vitriole I had to put up with at Dorf (with no support from ANYONE mind you!) your comments here will never be denegrated or deleted. And for the record, I have found your comments, even when disagreeing with people on that "other" blog, lol, extremely genteel and respectful. But now you have me worried. Are you going to think I was too hard on Mr. Benton? I hope not, but this is my perspective. Everyone is free to make their own case, provided it does not just devolve to meaningless personal attacks and name calling, it's all good in my book, and let the strongest argument win!

    Even Mr. Benton himself is welcome to comment on here. (Truth be told I'm kindof hoping he will!) He aint seen nothing yet. Though we are a relatively young organization I am now more motivated than ever and hope to build at least as big a following as Dorf!

    As far as the case, I think yes, at least from Alito's perspective it IS possible for you to be sued for exercising a con right. I mean, isn't that the whole point of having juries? So they can sort out whether your exercise of the right was appropriate or just a cover to violate someone else's rights (really the issue in this case).
    But not really "exercising" a "pure" constitutional right, if you will, just one "wrapped" in potentially tortious conduct, as here. Again, Alito hits this on the head by his pointing out that one slanderous rant can have both constitutionally protected and non constitutionally protected elements to it, (an apt anology after the exchange on dorf, isn't it?) Unfortunately, such distinctions appear lost on the majority, who have cast such a large net as to seemingly insulate most any speech that can be deemed "publicly important" as non-actionable, (though Breyer's concurrence certainly seems to think you could still sue in some cases). Again, no one is saying that you can't speak out vociferously. But as Alito points out, the majority's dispatch of both the precedents and the circumstances of this case don't really make much sense for the ruling they made, (especially when meeting all elements for IIED is, by statute, carefully spelled out). IN answer to you then, only to the extent a defendant's speech actually falls outside those guidelines would it be actionable. Of course, that was not the majority opinion and I am afraid the end result will be a general further coursening of public discourse. Again, I really struggled with this case as my political leanings made me sympathetic to the majority. I just think Alito had a more compelling argument. As for the actual effects we shall have to wait and see. One things for sure, we can expect raucus debate that will probably make me and Mr. Benton look like child's play!
    Thanks again for reading and commenting! jp

  3. P.S. In answer to your Tiller analogy, I would say that, at least in the view of the dissent, (which I happen to agree with, as you know), it turns less on when or where the intentional infliction of emotional distress occurs than on whether it can be said to constitute purely "political speech" or is really just a personal attack cloaked in free speech claims, (a matter distinctly, in my view, for the fact finder to decide). Of course, for all the above mentioned reasons in both my post and following comments, this does not even come into play for the majority, (for whom the touchstone seems to be whether the 'cloaked' attack touches upon any political topic of 'public significance') jp