The Supreme Court handed down its decision in Snyder v. Phelps, otherwise known as the “God Hates Fags” case.
To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).
As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.
Naturally, this chaps the ass of the families of the dead soldiers. It chaps my ass too. Were I the benevolent dictator of this country, I might very well have the Westboro followers rounded up, shoved into a wood chipper, and we would all live happily ever after. Of course, once I was done with that, my taste for blood would be unquenchable, and next thing you know, 100 million people would be run through the wood chipper before I got to half the people who piss me off.
Which is why I shouldn’t be the dictator… nor should anyone else… Which is one of the reasons we have a First Amendment. If we have free speech, we have our greatest check on tyranny. It is the cornerstone of American liberty. And, as abhorrent as the Westboro asshats are, it is more abhorrent to take a chip out of that cornerstone.
At least that is what I believe.
Fortunately, eight justices on the United States Supreme Court agree with me.
Today’s decision is a warming reaffirmation of the First Amendment — from a Court that isn’t exactly made up of some of the most free-speech friendly legal minds we’ve ever had.
In this case, poor Mr. Snyder lost his son. The Westboro asshats protested at his funeral, although Mr. Snyder could not see them at the time.
Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. (Op. at 3)
So lets keep this fact in mind. As a commenter noted (before this addition), most Americans think that Westboro interrupted or disrupted the funeral. This is not the case. (And if it were, I think the case would have come out differently). The Westboro asshats had a right to be where they were, and they had a right to say what they said.
Nevertheless, Mr. Snyder sued for defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. The defamation claim and publicity given to private life claims were squashed at the trial court level on summary judgment. Snyder v. Phelps, 533 F. Supp. 2d 567, 570 (D.Md. 2008)
A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 mil- lion in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, in- cluding a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.
In the Court of Appeals, Westboro’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected West- boro’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222–224. (Op. at 4)
Speech on a matter of public concern
The Supreme Court’s opinion begins with a discussion of the public vs. private concern distinction — because speech on a matter of public concern is entitled to the highest degree of First Amendment protection.
Whether the First Amendment prohibits holding West- boro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758–759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amend- ment reflects “a profound national commitment to the principle that debate on public issues should be uninhibi- ted, robust, and wide-open.” New York Times Co. v. Sulli- van, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted). (Op. at 5-6)
The Court noted that while discerning private concern from public concern is often a difficult task, there are general guidelines for a court to follow. “Deciding whether speech is of public or private concern requires us to examine the “‘content, form, and context’” of that speech, “‘as revealed by the whole record.’” (Op. at 7). However, the vitriolic nature of the speech, or its offensiveness does not factor in to the equation.
Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83–84. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492–494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387– 388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987). (Op. at 6-7)
The Court held that Westboro’s speech was on matters of public concern, and this is one of the more reassuring portions of the opinion. In the future, this will be used by defendants in free speech cases to demonstrate just how broad the definition of “matter of public concern” truly is.
The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781–3787. While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexual- ity in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And 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. (Op. at 8)
Outrageousness of Speech is no impediment to its protection
This part of the opinion is heartening too, although it has a bit of a sour note in it. Although it affirms some strong First Amendment principles, it also seems to unnecessarily go out of its way to make it clear that this is a fact-based ruling, and that it should not be broadly interpreted.
But, lets dwell on the good part first:
Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.
The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages. (Op. at 11-12)
And after setting up that “viewpoint discrimination ball,” the court tees it off hard here:
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [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) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.
For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. (Op. at 12-13)
This is a hell of a victory for free speech. We live in a political environment where the Right wing wants to limit all speech that criticizes the war and the Left wants to limit all speech that hurts anyone’s feelings. With that backdrop, this decision will make very few people happy. Veterans and Republicans will go all Walter Sobchak about Vietnam and 9/11. The PC crowd and the Democrats will whine into their tofu and lentils as they piss and moan that the First Amendment should not protect speech that makes someone feel bad. Most average Americans will say, “that just doesn’t seem right.”
But then, there will be a few of us who recognize that without free speech, we are not America. A few of us realize that freedom means having to tolerate opinions that you despise. I hope that a few of my readers are among that group, and that you go out and evangelize the good word that came down today, and you realize that Westboro Baptist Church and its merry band of asshats just did more for the cause of freedom than every man and woman who died in any American military adventure since 1953.
For that reason, the Westboro Baptist Church is the first entity to receive both the First Amendment Bad Ass award and the Asshat award in a single blog post. May their members choke to death on both.