A Blow for Freedom of Speech

Freedom of speech is best tested by those whose speech is most obnoxious to an overwhelming majority of the population. When a court applies constitutional principles to prevent the suppression of unpopular, unpatriotic and bigoted speech, a blow for freedom has been struck.

The 4th U.S. Court of Appeals struck such a blow recently when it reversed a judgment against the Westboro Baptist Church for picketing the funerals of American servicemen. (Snyder v. Phelps, 580 F. 3d 206 (C.A. 4 Md. 2009).

The tenet of Westboro Baptist Church is that the United States is being punished by God for tolerating homosexuality. A small independent Baptist church from Topeka, Kansas, its followers (mostly one extended family) believe that God hates homosexuality, and that the deaths of American service personnel are punishment for this tolerance. The church publicizes its doctrine by picketing the funerals of American service personnel killed in the Middle East.

Albert Snyder was the father of marine corporal Matthew Snyder, killed in Iraq. He brought suit in federal district court against the church after it picketed Matthew's funeral in Westminster, Maryland, chanting its slogans and displaying picket signs. Albert's suit claimed invasion of privacy, intentional infliction of emotional distress and conspiracy.

The trial court jury held for the plaintiff, and awarded compensatory damages of $2.9 million and punitive damages of $8 million. (The latter amount was reduced to $2.1 million by the trial court.)

The defendants' appeal asserted their rights of free speech under the First Amendment.

The causes of action brought by the plaintiff are based on state tort law doctrines. But established constitutional doctrine holds that even in private litigation, claims for private wrongs are subject to First Amendment protection. The gravamen of all plaintiff's claims lay in the words used by defendants, thus requiring constitutional review.

That review includes both substantive free speech doctrine, and review of the process in the trial court that resulted in a judgment.

The trial court in Snyder allowed two specific questions to go to the jury for decision: whether the defendants' actions were specifically directed at the Snyder family, and if it so found, whether they would be highly offensive to a reasonable person, were extreme or outrageous and were so offensive as not to be entitled to First Amendment protection.

Because appellate courts are required in cases such as this to review the entire record, the Court of Appeals was required to decide on the type of speech involved. Constitutional limits require this review "when a plaintiff seeks damages for reputational, mental, or emotional injury allegedly resulting from defendant's speech." Moreover, statements that can be characterized as opinion cannot be the basis for liability; there must be a "provably false factual connotation" to withstand constitutional scrutiny. Statements of "loose, figurative or hyperbolic language" cannot be punished.

The Court of Appeals found that these issues are questions of law, reserved to the court, and that the district court erred when it allowed the jury to decide them. Juries are judges of facts only; the characterization of the statements in issue is a question of law, which only the judge can decide. The submission to the jury itself assured reversal of the judgment.

Typical of defendants' picketing signs were "America is Doomed," "God Hates the USA/Thank God for 9/11," and "Thank God for Dead Soldiers." The court reviewed these signs and found some of them to be of "public concern," in that they did not directly refer to defendants and that no reasonable person could find them to be "actual and verifiable facts" about defendants. The determination whether the statements could be construed as "actual facts" is also for the court, not the jury, to decide.

Defendants contended that their comments were on public issues, and therefore immune from liability. Although the court accepted this, it found that no reasonable reader would find them to refer to the Snyders, and were thus not actionable.

A written "Epic" published on the church's Web site was similarly reviewed, and found to have matter directly referring to the deceased, with statements such as "God rose up Matthew for the very purpose of striking him down..." but found, "Notwithstanding the foregoing, the Epic cannot be divorced from the general context of the funeral protest."

The decision suggests that civil suits by aggrieved families are not likely to be a defense to Westboro Baptist Church's tactics. The defendants complied with all local regulations, and made no personal contact with the Snyder family. If plaintiffs like Albert Snyder are not able to have a jury decide their cases, their chances of success are much reduced.

Defendants' conduct has not escaped the attention of state legislatures. A majority of states have passed laws prohibiting protests at military funerals. And the federal government has adopted the Respect for America's Fallen Heroes Act, prohibiting demonstrations during the time period of one hour before and after a military funeral, and within 150 feet of an adjacent road.

Most legal commentators believe that all such laws will ultimately be found to violate the First Amendment, in the same manner as the tort judgment in Snyder. A recent 8th Circuit decision (Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008)) overturned a district court decision denying the church an injunction against enforcement of Missouri's law against picketing funerals. The opinion reserved judgment on the constitutionality of the law. Westboro Baptist Church is apparently able to comply with constitutionally acceptable time, place and manner regulations of its conduct.

Since Westboro Baptist Church's demonstrations have been going on and attracting attention since the early 90's, it is likely that this country will live with this problem for some time to come.

The Constitution does this to us. The Snyder court quoted an earlier 4th Circuit decision: "[j]udges defending the Constitution must sometimes share their foxhole with scoundrels of every sort, but to abandon the post because of poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged by not very nice people."