The Pastor Fred Phelps Has Died. Revisiting the Westboro Church’s Contribution to First Amendment Jurisprudence

The news last week that Fred Phelps, head of the Westboro Church had died, was not a particularly sad event for the vast majority of Americans. Fred Phelps had founded the « Primitive Baptist » Church, based in Topeka Kansas, in 1955, based on the idea that all calamities that befall the United States are a result of God’s wrath for the apparent acceptance of homosexuality in American society. The Church’s teachings were oftentimes hard to follow, but central to their message was their incessant picketing of the funerals of soldiers and homosexuals who had died of AIDS or had been the targets of hate crimes. More recently, they also picketed the funerals of victims of the Sandy Hook school shooting. The picket signs often bear messages such as “Thank God for dead soldiers”, “Thank God for 9/11” and “God hates fags”. The idea, apparently, is that we should rejoice in all of God’s judgments, whether good or tragic.

As you can imagine, the Westboro Church has been the target of quite a few legal battles over the years. The most interesting one, Snyder v. Phelps, 562 U.S. 2011, was considered by the American Supreme Court. Unfortunately, Westboro will now also have contributed to strengthening the First Amendment, despite their reputation as what most people consider to be a hate group.

The background to Snyder v. Phelps began in 2006, when seven members of the Westboro Baptist Church picketed the funeral of Matthew Snyder, a marine who had died in the Iraq War. In addition to holding up their pickets and chanting as family members and friends made their way into the church for the funeral, Westboro’s members had posted messages for Matthew’s parents on their website, stating that they had raised their son for the devil because they were divorced and had taught him that God was a liar.

Snyder’s father sued the Church and Phelps under five tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Westboro immediately moved for summary judgment, arguing that their picketing activities were protected by the First Amendment. Following the summary judgment motion, the trial and appeals focused primarily on the claim for intentional infliction of emotional distress.

At trial, a jury found Westboro liable for $2.9 million in compensatory and $8 million in punitive damages. The Court of Appeals reversed the trial findings and concluded that Westboro’s pickets were entitled to First Amendment protection because the statements were on matters of public concern and were not provably false. In 2010, the Snyders were granted certiorari to the Supreme Court, where the emotional distress claim was at the center of the pleadings. You can read the Westboro’s Bible-heavy brief here.

In the words of the Supreme Court, “to succeed on a claim for intentional infliction of emotional distress, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer emotional distress”. That statement of the law had to be counterweighed against the free speech clause of the First Amendment which provides that “Congress shall make no law abridging freedom of speech”. As stated by the majority, the outcome hinged squarely on whether Westboro’s speech was of public or private concern, as public speech in the United States is granted almost untouchable protection. First Amendment case law has clearly classified types of speech as being more or less worthy of protection, as restricting speech on purely private matters does not pose the same concerns as limiting speech on matters of public interest.

In applying the public concern test, the Court noted that “while these messages may fall short of refined social and political commentary”, Westboro’s signs did highlight matters of public import, such as homosexuality in the military and the political and moral conduct of American citizens. Snyder’s father had argued that the display of the signs at a funeral rendered the speech private. The Court disagreed, holding that speech cannot become private simply because it is spoken in connection with a private event. The Church had picketed on public property and had respected all city ordinances.

An interesting statement at the center of the majority opinion in Snyder v. Phelps was the Court’s focus on content rather than context. First Amendment case law has always been clear that content-based restrictions on free speech will not be tolerated. Speech cannot be banished simply because it is offensive or disagreeable. In applying this thinking, the Court stated:

“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”.

I have always found this reasoning of the majority difficult to follow. A tort claim for intentional infliction of emotional distress must necessarily focus on the content of the utterance. It is evident that signs saying “God Bless America” would not have caused the distress complained of in this case. The Court seemed to conflate free speech jurisprudence with case law on the intentional infliction of emotional distress, by applying the content-based restriction doctrine of the First Amendment to the tort claim, instead of anaylzing them separately and weighing them against each other.

Justice Alito wrote the sole vigorous dissent in Snyder v. Phelps. At the heart of Justice Alito’s opinion is the idea that the First Amendment does not require that people be entitled to voice their speech any way and in any context they wish regardless of the effects on others. In the words of the dissent, “Allowing family members to have a few hours of peace without harassment does not undermine public debate”. In particular, the dissent listed the many ways in which the Westboro Church was allowed to disseminate their views: on TV, the radio, by distributing books and articles, circulating petitions, speaking in public and private venues, etc. For Justice Alito, the protection already afforded the views of the Church was sufficient and it was not necessary to add verbal assaults to the long list of protected acts.

Alito then focused on the scope of the tort of intentional infliction of emotional distress, a notoriously difficult test to meet. He cited the Second Restatement of Torts and past case law which held that the First Amendment should not shield utterances that form “no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them, is clearly outweighed by the social interest in order and morality”.

The dissent highlighted the fact that the funeral was indeed central to the Church’s strategy for attracting public attention as it had made a point of issuing a press release (stating that Matthew Snyder had “died in shame, not honor, for a fag nation cursed by God”) before attending the funeral in order to make sure that it would turn into a media event. And so, the Church’s attack on Matthew Snyder’s parents was of central importance to the message, making it partly private in nature. Finally, Justice Alito disagreed with the majority’s focus on the speech having taken place on public property, noting that Courts have often condemned defamatory speech or “fighting words” even when they occur on public grounds.

I have to say that Justice Alito’s reasoning has strong appeal, as it does a much better job of contextualizing the speech at issue than the majority, and demonstrating how the picketers were indeed targeting specific people in this case, not simply expressing their opinion in a public space. Even Justice Roberts’ majority opinion admits that protected speech will not be allowed in any place at any time, so it is surprising that he did not conclude that a funeral was one of those impermissible moments. Or that the press release which clearly went beyond “matters of public concern” and attacked Matthew’s parents directly did not render the statements of Westboro actionable under the emotional distress tort.

Retired Justice John Paul Stevens stated in a recent speech to the Federal Bar Council that he would have sided with the dissent if he was still serving at the time of the judgment in Snyder v. Phelps.

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