12 October 2010

Sign Language: Is Westboro Baptist Hate Speech Protected from Tort Liability?

By Brandon Keller, Staff Writer

On October 6, The Supreme Court of the United States heard arguments on Snyder v. Phelps, a case that tends to boil the blood of anyone who reads the fact pattern.

In a nutshell, the Westboro Baptist Church, founded by Fred Phelps, decided to protest the funeral of a soldier, Marine Lance Corporal Mathew A. Snyder, killed in Iraq, with signs that read “Thank God for Dead Soldiers,” “Fag Troops,” and “You’re Going to Hell,” among other things. Afterwards the Church published a story online which claimed that Lance Corporal Snyder’s father, Albert Snyder, raised his son “for the devil,” and “taught him God was a liar.” They refer to this story as the “Epic.”

In the U.S. District Court of Maryland, Albert Snyder recovered damages for intentional infliction of emotional distress (“IIED”) and the privacy tort of intrusion upon seclusion (“Intrusion”) for both Phelps’ protest and the “Epic.” Judge King of the Fourth Circuit reversed on both counts, stating that the Church’s actions in protesting the funeral did not constitute “extreme or outrageous” conduct so as to satisfy the IIED claim, and that, because the Church protested the funeral from an adequate distance and in compliance with local police orders, the burden for proving Intrusion likewise fell short.

The question now before the Supreme Court is whether the First Amendment protects Westboro Baptist protestors from tort liability. The answer will depend on how the Court decides to frame the issue. Is this case about speech on issues of public concern, or is this case about a verbal attack on the plaintiff?

The amicus brief issued by 42 United States Senators claims that both Phelps and the Fourth Circuit confused the charges in this case with the law of defamation by incorrectly assuming that IIED and Intrusion “protect essentially the same broad interests as defamation claims, and thus must be subject to the same specific constitutional limitations.” First Amendment protections, they claim, should not even be an issue here because free speech does not “encompass insults and verbal abuse intended to invade a private memorial ceremony and injure its participants.”

Phelps is backed by the ACLU, which claims in their amicus brief that this case is about speech on issues of public concern, and not about a verbal attack on Albert Snyder. The ACLU is careful not to mirror the reasoning of the Fourth Circuit and use language from the law of defamation to address IIED and Intrusion. Instead, they write that a finding for Phelps does not require the Supreme Court to extend protections for speech against “public” individuals to those who speak against private ones, but requires them “merely to apply existing First Amendment doctrine allowing expression of opinions on matters of public concern without fear of potentially ruinous tort liability.”

Okay, enough with the legal jargon. Who wants to see these jerks lose $5,000,000? I know I do; but is this particularly infuriating set of facts causing me to take my right to speak freely for granted?