What the Supreme Court Really Said

On March 2, headlines like these were splashed across newspapers throughout the country:

“Supreme Court Upholds Westboro Church’s Military Funeral Protests”  — McClatchy Newspapers

“Supreme Court Protects Hateful Speech Near Funeral” — U.P.I.

“Justices Side with Funeral Picketers” — USA Today

With attention-grabbing headlines like that, it is difficult to understand what the U.S. Supreme Court’s (SCOTUS) ruling the in Snyder v. Phelps decision really means.

Plus, it is my view that news coverage in this instance was actually calculated to stir up emotions to gather more readers or viewers.

Let’s go back to the basics.  A state may still pass a law which legally restricts access or proximity to funerals by hateful groups, such as protesters from the Westboro Baptist Church of Topeka, Kansas.  In such a case, the odious protesters must follow such law.  SCOTUS’s decision has not changed any of that.

In this country, free speech is a right held so dearly that the First Amendment of our Constitution guarantees it for all.  However, the practical effect is that the First Amendment becomes most relevant in cases that involve unpopular speech — such as when small-minded religious fanatics picket the funerals of fallen military members.

We may think that their speech is misguided.  We may think it’s dead-wrong.  We certainly hate it.  But, that’s not the point.  It is protected speech.

Nina Totenberg

In a recent broadcast, Nina Totenberg of NPR reminded me that the framers of the U.S. Constitution designed the First Amendment to protect unpopular speech, not speech that we all agree with.  This is mind-blowing.  But, it’s true.

Now, here’s the really ironic twist — Those brave military members who gave up their lives while far away from their friends and families fought and died while protecting Constitutional ideals such as freedom of speech.  This includes all protected speech.  Even Westboro hate speech.

This is not to say that all speech is protected.  Over the course of our country’s history, SCOTUS has carved out numerous exceptions to the free speech doctrine:

  • Obscenity (speech that appeals to the prurient interest, depicts or deprives sexual conduct in a patently offensive way, and lacks serious literary, artistic, political or scientific value)
  • “Fighting words” (calculated to induce violence)
  • Imminent threats (there must be a “clear and present danger.”  This is where Justice Oliver Wendell Holmes’ ‘yelling “fire” in a crowded theater’ example comes in)
  • Restrictions on commercial speech (e.g. false advertising)
  • Libel, slander and defamatory forms of speech
  • Government speech (a complicated doctrine in which the Court recognized that the U.S. Government may restrict its own speech in ways in which it cannot for speech by a private citizen.  For example, the Government can choose to fund certain activities, while electing not to fund others)
  • Public employees (in their role of employment, governmental employees may be disciplined and are not shielded by the First Amendment.  A good example of this exception is military members)

Now, within the context of the Westboro church members’ protests, wouldn’t their hateful speech fall into the “fighting words” exception?

The fact is, over time the Supreme Court has narrowed this exception significantly.  Generally speaking, restrictions on hate speech based solely on content have been protected by the courts.  If the Westboro folks were actively advocating violence, I suspect this would be a different story.

Westboro Baptist Church

Let’s not lose sight of the big point here.  These people cannot do whatever they want.  They have to follow the law.  And SCOTUS has explicitly recognized the legitimacy of state laws that restrict speech based upon time, place and manner.  The classic example is that you cannot hold a parade down Main Street in the middle of the day on a moment’s notice.  You must go through the proper procedure set forth by the state and local governments.

Whenever a state or local law with time, place or manner restrictions on speech is challenged, the courts invariably look to see if the restriction is truly content-neutral.  In other words, are the same restrictions being applied across the board to all speakers, regardless of their message?

Now, what happened in the Snyder v. Phelps case?  The events took place in Westminster, Maryland on March 10, 2006.  Marine Lance Corporal Matthew A. Snyder had been killed in the line of duty in Iraq.  During his funeral, members of the Westboro Baptist Church picketed, holding up signs expressing general points of view such as “America is doomed” and “God hates America.” However, the signs also expressed more particularized messages, such as: “You are going to hell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.”

Not stopping there, the Westboro protesters’ acts also included posting an “epic” on their website, entitled “The Burden of Marine Lance Cpl. Matthew Snyder.”  This post claimed that Lance Cpl. Snyder had been “raised for the devil” and “taught to defy God.” It was undisputed at trial that none of the Westboro defendants had ever met Matthew Snyder or any members of his family.

This is digusting stuff, no doubt.  But, a fact that we should not lose sight of is that the Westboro protesters followed the law.  They remained far enough away from the funeral events to abide by Maryland law.

Albert Snyder

Later in time, Matt Snyder’s father, Albert, brought a lawsuit in federal court against Westboro minister Fred Phelps and the protestors.  He based the action on intentional infliction of mental and emotional distress, invasion of privacy by intrusion upon seclusion, and conspiracy to commit these acts.  These are all legitimate causes of action under Maryland law.  On October 31, 2007, a jury awarded Mr. Snyder nearly $11 million in damages.

In post-trial motions based upon the freedom of speech concepts outlined above, the U.S. District Court judge denied Westboro’s request to set aside the verdict.  However, upon appeal, the U.S. Court of Appeals for the 4th Circuit reversed the lower court’s ruling, finding that the judgment in the case contravened the First Amendment.

This set the matter up for U.S. Supreme Court review.  As Nina Totenberg pointed out, SCOTUS did not have to hear this case.  However, the Justices voted to do so.

On March 2, 2011, the Supreme Court ruled that the First Amendment shields Westboro from tort liability for its picketing activities in this case.  This means: they cannot be sued successfully.

Fred Phelps

There is often confusion in the general public (and, unfortunately, in the media) as to the difference between criminal and civil law.  Criminal law involves people violating a penal code.  After being arrested, a case is brought by a prosecutor in the name of the people of the state.  Criminal convictions often carry penalties including confinement in prison and criminal fines paid to the government.

Civil lawsuits most often involve one individual suing another for damages.  That is what was at stake in the Snyder v. Phelps case.  Mr. Snyder was suing for money damages.  SCOTUS said you can’t do that based upon the First Amendment.  Mr. Snyder does not get $11 million.

Once again, let’s not lose sight of the fact that states can restrict these protesters and keep them a reasonable distance back from funerals.

Fueled by slightly irresponsible media reporting, the American general public has been whipped up into a frenzy.  We believe that the Supreme Court didn’t do its job properly.

We feel that SCOTUS should have said: “No, Westboro.  You can’t protest military funerals anymore.  You also have to stop spewing hate at people who don’t deserve it.”

Although that would have been nice, it was not what Lance Corporal Snyder died defending.

— The Major

Matt Snyder


One response to this post.

  1. Posted by Cecily on March 6, 2011 at 3:36 pm

    Awesome post! I’ve known about the Phelps family since I was a kid back in Kansas and several times had to walk past/through them when I was in college. I think at that time they were a much smaller group made up mostly of Phelps family members and held most of their protests in Kansas or close by. Now, I hear about them being all over the US so I assume, sadly, the group has expanded beyond family. Most if not all of the Phelps are attorneys so they often gloat about not being able to be sued.

    I pray the very God they claim to be doing the good work of personally meets them at the pearly gates to say, “hell no” or rather “hell, yes”.


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