Free Speech in the U.S.A.

Sometimes one needs to be reminded how crazy the U.S.A. is about free speech — any kind of speech.

Have a look at the U.S. Supreme Court web site ( and follow “Opinions”.  You will find a case Snyder v. Phelps (No. 09-751) decided on March 2, 2011.  The case is so startling that I need make no comment about it.  I merely set out the pertinent parts so that you can follow it with amazement.

The headnote says:

For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers.  The picketers peacefully displayed their signs — stating, e.g. “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.” — for about 30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later than night.

Snyder filed a diversity action against Phelps, his daughters — who participated in the picketing — and the church … alleging, tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars [$2.9 million compensatory damages and $8 million punitive damages]. Westboro challenged the verdict and argued as a matter of law that the First Amendment fully protected its speech.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case.

(a) The Free Speech Clause of the First Amendment can serve as a defense in tort suits, including suits for intentional infliction of emotional distress. … “speech on public issues occupies the ‘”highest rung of the hierarchy of First Amendment values”’ and is entitled to special protection.” …A statement’s arguably “inappropriate or controversial character …is irrelevant to the question whether it deals with a matter of public concern.”

The “content of Westboro’s signs plainly relates to public, rather than private matters. The placards highlighted issues of public import — the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving the Catholic clergy — and Westboro conveyed its views on those issues in a manner designed to reach as broad a public audience as possible.

The majority noted:

Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty.  Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral.

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10-by-25-foot plot of public land adjacent to a public street, behind a temporary fence.

At the end of the Judgment, Chief Justice Robert says:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. 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. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The dissent by Justice Alito has the touch of common sense:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure.  He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss:  to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.  As a result, Albert Snyder suffered severe and lasting emotional injury.

…As the Court notes, church members have protested at nearly 600 military funerals.  …And in advance of these protests, they issue press releases to ensure that their protests will attract public attention.

…The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain.  Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson — proclaiming that she was “better off dead” — their announcement was national news, and the church  was able to obtain free air time on the radio in exchange for canceling its protest.

…The signs [in this matter] would most naturally have been understood as suggesting — falsely — that Matthew was gay.  Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” and “Fag Troops.” Another placard depicted two men engaging in anal intercourse.  A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

…The Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, but I see no basis for the strange distinction that the Court appears to draw. The respondents’ motivation — “to increase publicity for its views,” — did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern.  Nor did their publicity-seeking motivation soften the sting of their attack.  And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

…Exploitation of a funeral for the purpose of attracting public attention “intrudes upon their…grief,” and may permanently stain their memories of the final moments before a loved one is laid to rest.  Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.

… Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.