The US Supreme Court issued a majority opinion today that the homophobic and hostile Westboro Baptist Church is covered by the First Amendment when its members picket outside funerals; this is based on the grounds that the substance of the protests could be considered commentary on national matters.
"As a nation we have chosen...to protect even hurtful speech on public issues to ensure that we do not stifle public debate," Chief Justice John Roberts wrote for the court. "That choice requires that we shield Westboro from tort liability for its picketing in this case."
The Westboro church believes that any misfortune America suffers is divine punishment for the nation's failure to follow the sect's doctrine, which condemns gays, Catholics, Jews and others. The tiny church, whose membership largely consists of the founder's family, pickets military funerals to get attention for its message.
This majority opinion stretches the First Amendment until it squeaks at the edges, to get it to cover hate-mongering and homophobia because those attitudes are associated with a presumed theological critique of national affairs. Eight of the nine justices concurred in the majority opinion, though Justice Stephen Breyer wrote a separate opinion partially modifying his concurrence. Justice Samuel Alito dissented, in a separate opinion that pointed out relevant issues that had not been considered by the court.
Immunizing Westboro from tort action means that the plaintiff, Albert Snyder, cannot sue in civil court for damages related to Westboro's picketing at the 2006 funeral of his son, Lance Cpl. Matthew Snyder. An earlier Pennsylvania court decision that slapped Westboro with a $10.9 million judgment for the Snyder funeral protest was overturned on appeal before the case arrived at the Supreme Court.
From the ABC News article:
Matthew Snyder died in Iraq in 2006 and his body was returned to the United States for burial. Members of the Westboro Baptist Church, who have picketed military funerals for several years, decided to protest outside the Westminster, Md., church where his funeral was to be held.
The Rev. Fred Phelps and his family members who make up most of the Westboro Baptist Church have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God's punishment for the nation's tolerance of homosexuality.
They showed up with their usual signs, including "Thank God for dead soldiers," "You're Going to Hell," "God Hates the USA/Thank God for 9/11," and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.
The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.
Several weeks later, Albert Snyder was surfing the Internet for tributes to his son from other soldiers and strangers when he came upon a poem on the church's website that attacked Matthew's parents for the way they brought up their son.
Soon after, Snyder filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.
The federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.
Forty-eight states, 42 U.S. senators and veterans groups sided with Snyder, asking the court to shield funerals from the Phelps family's "psychological terrorism." ...
Links to all the briefs submitted in the case can be found here at the SCOTUS website.
Westboro members have demonstrated at hundreds of military funerals, typically bearing signs that say, “Thank God for Dead Soldiers,” “Pope in hell,” “God Hates the USA” and “Fag troops.”
The leader of the church, Fred Phelps, was one of seven protesters at the 2006 funeral of Matthew Snyder, a Marine lance corporal who died in Iraq’s Anbar Province.
The demonstration was held 1,000 feet away from the Westminster, Maryland, Catholic church where the funeral was held. The Westboro website later featured an “epic” that said Snyder and his ex-wife “taught Matthew to defy his creator” and “raised him for the devil.”
Albert Snyder sued Fred Phelps and two of his daughters for intentional infliction of emotional distress. A jury awarded Snyder $10.9 million, an amount later reduced by a trial judge. A federal appeals court then threw out the entire award, and Snyder appealed to the nation’s highest court.
Roberts characterized the ruling as a narrow one that rested in part on Westboro’s compliance with police instructions about where the protest could be held.
“Simply put, the church members had the right to be where they were,” the chief justice wrote. He added, “The protest was not unruly; there was no shouting, profanity or violence.”
A lack of shouting, profanity or violence has not characterized all of Westboro's funeral protests over the last few years. Some of them have been so loud that the Patriot Guard Riders motorcycle club has been asked to attend, to block the sight and sound of Westboro's activities from mourners:
Debbie Lee was shielded by the Patriot Guard Riders’ flag line from viewing or hearing protesters at the 2006 memorial service held in Hood River to honor her son, Marc Alan Lee, a fallen Navy SEAL.
She later watched news reports about the “vile and disgusting” things that a splinter group of the Westboro Baptist Church members said about Marc, who was raised in Hood River and died at the age of 28 while on a combat mission in Ramadi, Iraq.
Lee, who now resides in Surprise, Ariz., said it is very possible that, given her grief, she could have been “pushed over the edge” by reading signs with messages such as, “Thank God for dead soldiers” or hearing protesters accuse her of “sending Marc to hell by encouraging his military service.”
“My son died to save his buddies and defend the country that he loved and I can’t begin to tell you how overwhelming my emotions were after I heard media reports about the disgusting things that were said that day,” said Lee.
“I’m not a violent or aggressive person but I could have become one if I had been completely aware of what was going on.”
Lee contends that the mission of the Patriot Guard riders, a motorcycle group that formed in 2005 to shield families from protesters during memorial services, has alleviated the potential for violent encounters. If invited to the service by a family, as was done in Lee’s case, the bikers, many of whom are veterans, hold tall flags to block the picketers from view. They also drown out the chants of protesters by playing bagpipes, singing or revving their bike engines.
Westboro members contend the death of U.S. troops is God’s retribution for their defense of a nation that embraces homosexuality, which they consider a mortal sin. Eliminating the possibility of mental distress that could lead someone from a military family to commit an act of disorderly conduct is one reason that Patrick Sheehan, R-Clackamas, decided to join Rep. JimWeidner, R-Yamhill, as a chief co-sponsor of House Bill 3421, The Funeral Civility Act.
They believe it is possible to protect free speech while setting an appropriate time and place for protests so there was no disruption of a service to pay respect to someone that has died. Their bill is modeled after legislation that has already become law in 40 other states and applies to both civilian and military funerals and memorial services.
“What they (Westboro church) are doing is essentially inciting violence and this bill is basically just an acknowledgement that everyone has the right to mourn in privacy and peace,” said Weidner, who has a son serving in the Air Force.
Sheehan was asked to make the matter a priority by Becky Ginsbach of the Estacada Area Support Our Troops Foundation. He credits military families for exhibiting remarkable constraint by not assaulting the protesters that insult and demean their loved one’s military sacrifice at a time of great personal pain.
“Public safety has to be part of this conversation,” he said. “If people are protesting outside the church where a funeral is taking place for your child, it’s going to cause you mental distress and that’s absolutely understandable.”...
It would be interesting to know just how the Court arrived at this thread-narrow opinion, but that's something that those of us not in the room during the discussion will never know. However, this SCOTUS blog account of the oral arguments may provide some hints:
...It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices. Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”
The two lawyers in the case came well prepared to argue both the facts and the law — from diametrically opposed perspectives — and, despite the overall mood along the bench, managed to do so quite impressively. But the anguish of Albert Snyder, father of a dead soldier, and of the other funeral-goers in Westminster, Md., four years ago, and the recollection of the ugly messages that protesters near the scene had displayed, so tugged at feelings that a video of them might have seemed to be playing, over and over again, on the frieze that rings the chamber’s ceiling.
The Court went searching, through hypothetical examples, for ways to define limits on protests at funerals, but usually managed to conjure even more sympathetic targets of hateful speech — such as a grandmother, leaving a cemetery where her soldier grandson killed in combat had just been buried, waiting at a bus stop and being harangued, “in vile tones,” by an anti-war protester expressing pleasure at the soldier’s demise (the scenario suggested by Justice Samuel A. Alito, Jr., and embellished by Justice Antonin Scalia).
Another telling sign was Chief Justice John G. Roberts, Jr., repeating with increasing force the accusation that the Westboro Baptist funeral protesters had singled out the dead soldier’s father and the funeral, not to enter a discussion about public affairs including morality, but simply to achieve “maximum publicity.” Snyder, he said, sought only to bury his son, not to make any kind of statement. The Chief Justice was openly skeptical of the small church’s claim, made by its lawyer, that “it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message.”...
But judicial detachment is not likely to be conspicuous when a lawyer steps to the podium and begins with the simple statement: “We’re talking about a funeral,” and immediately laments the loss of the quiet, the dignity that everyone expects to come with such rites. All kinds of mental images, familiar and perhaps always painful, get stirred up by such references. And, when everyone in the room is familiar with how the quiet dignity was threatened this time, as was true on Wednesday, even a constitutional case about free speech would not have had much chance of being only about law.
By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lance Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer. The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event. As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”
That approach also seemed to hold some appeal for Justice Anthony M. Kennedy, who expressed his concern that the Westboro Baptists were seeking a constitutional right to follow around any individual who had a particular trait that the pursuers disliked, and making that person a target of outrageous comments. In addition, Kennedy openly invited counsel to “help us in finding some line” that would make such pursuits unprotected as free speech.
Sean E. Summers of York, Pa., the lawyer for the dead Marine’s father, wanted a very simple constitutional line — tailored to follow exactly the facts as he portrayed them. The services for Matthew Snyder were a private event, it was disrupted by private individuals, who had made the private Snyder family its special target for its abuse, so, to Summers, the First Amendment has no role to play. To Summers, there was no public policy issue involved, just a message of personal intolerance.
The Westboro Baptists’ lawyer — family member Margie J. Phelps, of Topeka, Kan. — wanted an equally simple constitutional line — fitting her version of the facts. Albert Snyder had intentionally turned his son’s funeral into a public media event and himself into a public advocate, the protesters showed up to debate him on the sins of America and the consequences, and so, to Phelps, the First Amendment provided the usual shield for speech on “matters of public concern.”
While the Justices (all except Justice Clarence Thomas) were active in the argument and energetically questioned both of the lawyers, there was a notable tonal difference. The questions to Summers were probing but respectful, in general. The questions to Phelps, on the other hand, were sometimes heavy with skepticism, and, from some of the Justices, displayed implicit hostility. The Chief Justice and Justice Alito seemed the most skeptical, but Justice Kennedy made little effort to conceal his discontent.
Especially given the atmosphere that Phelps confronted (and the pre-argument skepticism about her likely performance, since she is a member of the Westboro Baptists family and has shared in the scorn shown them in the media), she gave a well-honed argument and did not yield to any temptation to respond in kind to the tone of many of the questions. She made only one reference to the family’s small church, referring to it as “a little church where the servants of God are found,” but it did not sound as if she were trying to gain sympathy for it or for its strongly-embraced cause of lecturing America for its sins.
Justice Breyer, as is his norm, spent the most time thinking out loud about possible ways to decide the case. But Justices Elena Kagan and Sonia Sotomayor appeared to go the furthest to push both lawyers to refine their arguments, and deal with larger implications of the First Amendment controversy at issue.
From the three opinions released today, here is Chief Justice Roberts, writing for the majority:
"Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, 'the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.'...
"Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech.
"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..."
Justice Breyer, in a concurring statement, noted that the Court was dealing only with the picketing, and not with Westboro's online verbal attack against the Snyders:
While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern....
The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual... The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress—to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, even in the most horrendous of such circumstances?
As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection....
Justice Alito's dissent was not quoted at length in any article I found, but it deserves reading. Here's most of it, minus the footnotes and citations; the full opinion is here):
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.
The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.
Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” ...
It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED)....
This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” ... To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe....
A plaintiff must also establish that the defendant’s conduct was “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” ... Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence.... They did not dispute that Mr. Snyder suffered “‘wounds that are truly severe and incapable of healing themselves.’” ... Nor did they dispute that their speech was “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ”... Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.
It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech.... And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.
This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does 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.”... When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.
In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.
On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations. They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country. They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are al- lowed. (There are more than 4,000,000 miles of public roads in the United States.) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.) But of course, a small group picketing at any of these locations would have probably gone unnoticed.
The Westboro Baptist Church, however, has devised a strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military funerals.... They have also picketed the funerals of police officers, firefighters, and the victims of natural disasters, accidents, and shocking crimes. And in advance of these protests, they issue press releases to ensure that their protests will attract public attention. This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. 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.
Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman. In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor—for a fag nation cursed by God . . . .” ... This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.
On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You" and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins.... Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,”conveyed the message that Matthew was “in Hell—sine die.” ...
Even if those who attended the funeral were not alerted in advance about respondents’ intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder’s funeral and not at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents’ signs—e.g., “God Hates You,” “Not Blessed Just Cursed,” and “You’re Going to Hell”—would have likely been interpreted as referring to God’s judgment of the deceased. Other signs 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,” “Semper Fi Fags,” “Fags Doom Nations,” 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.
After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!”...
Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:
“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil....
“Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they con- demned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.
“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”
In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not....
In a footnote, Alito points out that the Supreme Court refused to consider the 'epic' as part of the case against Westboro because it was not part of Snyder's petition before the court. "The epic, however, is not a distinct claim but a piece of evidence that the [Pennsylvania] jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress.... The Court’s strange insistence that the epic “is not properly before us,” ... means that the Court has not actually made “an independent examination of the whole record,”... And the Court’s refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro’s protest activities at other times and locations."
Again from the dissent:
JUSTICE BREYER provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:
“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.”... This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed—and that they will now continue to employ—inflicting severe and lasting emotional injury on an ever growing list of innocent victims....
The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.
First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.
Second, 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. 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.
Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].”... And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.
One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral.... It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing.... And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.
The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable.... Exploitation of a funeral for the purpose of attracting public attention “intrud[es] 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.
In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner....
A point comes to mind that only was alluded to in the long list of places that Westboro chose not to protest: by protesting at the funerals of soldiers, police, firefighters and other ordinary people, Westboro has been aiming its "commentary on national affairs" solely at people who not only had been deeply wounded by those national affairs but who have little to no power to change them.
Since the Court did not include the 'epic' in its considerations, it might be possible for the Snyder family to bring a civil suit for damages against Westboro based on those online words, if they wished. Whether they do or not, it appears likely that many more families may have to run the gantlet of insults disguised as protected speech.
The Cardozo Law Review features an online symposium discussing this case.