On March 11, 2011 the United States Supreme Court issued an opinion on the First Amendment Freedom of Speech and in particular with reference to hate speech in relation to the intentional infliction of emotional distress tort. In the case Phelps et al. v. Snyder (No. 09–751. Argued October 6, 2010—Decided March 2, 2011; 562 U.S. ____ (2011)) Chief Justice Robert, who wrote the opinion for the majority, reaffirmed the long line of First Amendment cases and its protection also in this case of hateful military funerals. Justice Roberts stated that: “Speech is powerful … it can move people to tears of both joy and sorrow, and – as it did here – inflict great pain”.
The case arose because on March 10, 2006 Fred Phelps, founder of the Westboro Baptist Church (Topeka, Kansas), along with six relatives and parishioners traveled to Maryland uninvited and picketed the funeral of Marine Lance Corporal Matthew Snyder, who lost his life in Iraq. Accolades of the Church picketed the funeral with signs expressing beliefs that God hates the United States for its tolerance of homosexuality in the American military. This activity occurred 1,000 feet from the funeral. The Westboro Baptist Church’s activity of funeral picketing goes back in time as started in the ‘90s. The Church condemns also the Catholic Church for the scandals involving its priests.
The Snyder family sued Fred Phelps, other members of his family and the Westboro Baptist Church for defamation, invasion of privacy and intentional infliction of emotional distress. A federal jury court condemned all defendants to $2.9 millions in compensatory damages, $6 million in punitive damages for invasion of privacy and $2 million for emotional distress (later reduced).
On September 24, 2009, the U.S. Court of Appeal for the Fourth Circuit reversed stating that the picketing was protected speech under the First Amendment because the statements were on matter of public concern, not false and not in violation of the funeral service of the Snyder family. Snyder was condemned to pay court costs.
In the meanwhile, on May 24, 2006, Congress passed the Respect for America’s Fallen Heroes Act that bans protests within 300 feet from national cemeteries, and one hour before and after a funeral. Seventeen states introduced the ban along with Kansas (the State where the Westboro Baptist Church is located). The ban is currently under constitutional revision in various states.
In addition, pending the review before the Supreme Court, many members of Congress supported the Snyder family: 42 Senators of both sides, including their speakers, signed a friend-of-the court brief asking to reinstate the verdict against Phelps.
The U.S. Supreme Court granted Certiorari and on March 2, 2011 affirmed the Court of Appeal decision. The Court held that: “The first Amendment shields Westboro from tort liability for its picketing in this case”. This case turns on the distinction between speeches on private or public concern: the latter occupies the highest hierarchy on values and is entitled to special protection. With public concern the court referred to matters relevant for the community and with political or social content. Its inappropriateness is irrelevant.
For the Supreme Court, the signs used by the Phelpes were of public concern even if few of them related to the Snyders. The use of the Snyder’s funeral by the Phelpes as a stage for leveraging their opinions was hurtful but lawful. According to Chief Justice Robert, “Westboro must be shielded from tort liability for its picketing because hurtful speech on public issues ensures that public debate is not stifled”.
Justice Alito wrote a dissenting opinion stating that: “[o]ur profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case’. For Justice Alito, the Westboro transformed a private ceremony into a media event verbally attacking the father of Matthew Snyder and causing him sever and lasting emotional injury with no intention of enriching the public debate.
It is relevant to consider that the Phelps have all the protections and guarantees of the First Amendment to express their views in several fora among which the Internet, radio, TV and so forth. This does not justify any infliction of distress to private individuals. In the words of Alito: “[w]hen grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery”.
