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Walter Weber

Snyder v. Phelps: Testing the Free Speech Clause in the Westboro Baptist Funeral Picketing Case


Friday, October 8, 2010

The Supreme Court currently has before it the case of Snyder v. Phelps, a potentially landmark First Amendment case. This is the "funeral picketing" litigation involving the notorious Rev. Fred Phelps and his Westboro Baptist Church. While the case provokes strong emotions, it also involves very important legal principles. In this article I will identify some of the central constitutional issues. (Full disclosure: the American Center for Law and Justice -- my employer -- filed an amicus brief in the case in support of neither party.)

Background of the Litigation

Phelps and his followers make a regular practice of picketing the funerals of fallen military personnel while toting signs bearing crude attacks on homosexual persons and Catholics and displaying messages like "Thank God for Dead Soldiers" and "God Hates the USA/Thank God for 911." The Phelpses distribute advance press releases notifying the media of their upcoming funeral pickets. In response, a group called the Patriot Guard Riders frequently amasses a contingent of flag-waving veterans on motorcycles who effectively screen out the Phelpses with their own counter-demonstration of respect for the fallen. (Search for "Patriot Guard Riders" on YouTube to get a sense of what this entails.)

The Phelps clan represents a horrid caricature of Christianity, preaching a God of hate and apparently exploiting human loss for personal publicity. They have managed to antagonize just about everyone.

One person they especially grieved is Albert Snyder, the father of a deceased Marine at whose funeral the Phelpses held one of their pickets.

Snyder sued the Phelpses and their church in federal court in Maryland (the place of the funeral), asserting five claims under Maryland law: defamation, publicity given to private life, intrusion upon seclusion, intentional infliction of emotional distress (IIED), and civil conspiracy. The alleged tortious acts were: (1) picketing the deceased Marine's funeral and (2) posting a vitriolic diatribe about the Snyder family on the church's website,

The district court rejected, on summary judgment, Snyder's claims for defamation and publicity given to private life. However, the district court let the remaining claims go to the jury. The court instructed the jury, "You must balance the Defendants' expression of religious belief with another citizen's right to privacy and his or her right to be free from [IIED]." The district court added: "you must then determine . . . whether these actions were so offensive and shocking as to not be entitled to First Amendment protection." The jury ruled against the Phelpses and awarded over $10 million in damages.

The district court reduced the total damages to $5 million but otherwise let the verdict stand. The Phelpses then appealed to the U.S. Court of Appeals for the Fourth Circuit.

The Fourth Circuit's Partly Flawed First Amendment Ruling

The court of appeals reversed.

The Fourth Circuit ruled that the district court "fatally erred" by allowing the jury to decide the constitutional questions. This part of the appeals court's decision should be uncontroversial. It is not up to a jury to decide the scope of the First Amendment. If it were, unpopular speakers would be at the mercy of potentially hostile juries. Whether the First Amendment shields certain speech is generally a question of law, not a fact question for the jury.

But the Fourth Circuit also ruled that the First Amendment protected the Phelpses' activities outright; hence, they should win without the need for another trial. The court held that the First Amendment only permits liability for speech that contains a "provably false factual connotation," as opposed to "rhetorical hyperbole."

This is most certainly not right. Speech need not be "factually false" to fit in one of the exceptions the Supreme Court has recognized for First Amendment protection. Threats, for example, are unprotected even if (perhaps especially if) they are genuine. Fighting words are still unprotected when they employ accurate epithets; indeed, fact-based epithets might be more provocative of a brawl. And, regarding the IIED tort at issue in Snyder, statements that are true ("Hooray, your son has AIDS!" or "Congratulations on the rape of your daughter!") can inflict distress as much as, or more than, false invective.

The court of appeals may have been misled by the Supreme Court's decision in Hustler Magazine v. Falwell (1988), In Falwell , Hustler had published a fake advertisement in which Falwell supposedly recounts a drunken, incestuous encounter with his mother in an outhouse. Overturning an IIED judgment in Falwell's favor, the Supreme Court did indeed say that the First Amendment required a showing of falsity, under the "actual malice" standard borrowed from defamation cases, for Falwell's IIED claim to pass constitutional muster. But in Falwell , the tortious injury asserted flowed precisely from the falsity of the speech in question. Rev. Falwell's claim was not that Hustler had revealed some damaging family secret, but rather that it had told an extremely distressing lie about Falwell. Naturally, then, falsity was a central factor, even if not, strictly speaking, an element of the tort. Accordingly, it made sense for the Supreme Court to require a provably false statement for "publications such as this," viz ., "the publication of a caricature." It does not make sense, however, to apply that same requirement across the board to IIED claims, since falsity is not an element of that claim and has no necessary relationship to the interests protected by the tort.

Snyder's Questions Presented -- and Added

Snyder then petitioned for Supreme Court review. Snyder posed three questions to the Court, which can be paraphrased as follows: (1) Does the Supreme Court decision in Falwell also apply to suits not involving public figures? (2) Do free speech rights (i.e., the Phelpses' antics) "trump" freedom of religion and assembly (i.e., the funeral for the fallen soldier)? (3) Is someone attending a funeral a "captive audience" entitled to special protection against "unwanted communication"?

The Supreme Court granted the petition. However, these three questions, as phrased, raise serious difficulties for Snyder's case.

The Falwell Question

First of all, Question 1 focuses on the wrong issue. True, t he decision below did misapply Falwell, in that the court of appeals erroneously insisted on the need to prove falsity and the concomitant need to distinguish between false accusations and overheated rhetoric. But while the court of appeals was off base, Snyder's Question 1 entirely misses this point. His petition does not take issue with the falsity requirement as such, but rather argues that Falwell supplies the wrong standard of proof in private-on-private lawsuits. The fundamental flaw with Snyder's position is that the Fourth Circuit did not rely upon the standard of proof, but rather on the absence of provably factually false assertions. So Snyder's Question 1, while academically interesting, is not apposite to his case.

Rights versus Rights

Snyder's Question 2, meanwhile, sets up a false conflict between constitutional rights. It is black-letter constitutional law that only government, not private parties, can violate the First Amendment. Thus, for example, a newspaper editor who squashes a reporter's story is not offending the constitutional right to free speech. But in Snyder's case, none of the parties is a governmental entity. The Phelps protest represents private action that, by definition, cannot infringe Snyder's constitutional right to freedom of religion or assembly.

Snyder's Question 2 also poses a severe threat to free speech. He invites the courts to take on the authority to "balance" free speech against the audience's desires. If speech can be balanced away to prevent offense to one's practice of religion or the right to assemble, then a long list of demonstrations and counter-demonstrations are in jeopardy.

Captive Audience Doctrine

Snyder's Question 3 is perhaps the most disturbing, as he seeks to expand the concept of a "captive audience." This concept allows a court to uphold otherwise unconstitutional restrictions on free speech in contexts where the audience simply cannot escape exposure to unwanted messages. Thus far, the captive audience doctrine has only applied to unwilling audiences in a narrow set of circumstances, such as people in the privacy of their own homes or confined to the inside of public transportation vehicles. Expanding the captive audience concept to justify the imposition of crushing civil liability upon protesters -- even deeply repellant protesters -- who were essentially out of sight, on public rights of way, and demonstrating in compliance with police directives (the facts in the Snyder case) would be both unwarranted and dangerous to the freedom of all speakers. The Snyder case is particularly poor candidate for expansion of the captive audience doctrine, since Snyder's "exposure" to the offensive communications did not come from physically "in your face" demonstrations. Rather, Snyder first viewed the protests on television later that day, watching the news. And he did not encounter the Phelpses' website screed against his family until voluntarily searching the Internet some time later. This is not the stuff of "captivity."

Tossing in Frisby

Snyder nevertheless claims that funerals are entitled to special protection against free speech. To support this proposition, Snyder invokes Frisby v. Schultz (1988), in which the Supreme Court upheld a ban on "focused" or "targeted" picketing of a residence. (Full disclosure: I represented the plaintiffs/respondents in that case.) Snyder's argument is that, just as the Court recognized the home as a very special place that should be immune from targeted protests, so should the Court recognize funerals as entitled to the same solicitude.

   The principal constitutional problem is defining what picketing is "focused" or "targeted." A demonstration can be "focused" in a physical, geographical way (i.e., camping out at someone's doorstep or front sidewalk), or in a topical way (targeting one's message to the resident). In Frisby, the Supreme Court held that the anti-picketing ordinance at issue was "content-neutral'' -- i.e., the restriction applied regardless of what the picketers had to say. Thus, the term "focused" (or "targeted") must be understood as referring to a geographical, not topical, focus.

But applying Frisby in a content-neutral way to Snyder's case raises a big problem: if the Phelpses' spectacle is deemed "focused" -- and thus constitutionally unprotected -- under Frisby, then so was the counter-demonstration of the Patriot Guard Riders (PGR), who also attended the Snyder funeral but were there to support the Snyder family and to drown out and obscure the Phelpses. Under Snyder's theory, the PGR can be sued for millions by each one of the attendees at the Snyder funeral. Astonishingly, Snyder concedes this point in his reply brief: "to the extent that [the PGR] contributed to the circus-like atmosphere and interfered with Mr. Snyder's mourning process, they, too, invaded his privacy. . . . A plaintiff need not sue everyone who harms him . . . ."

This startling concession -- that under Snyder's legal theory, even friendly, supportive veterans trying to shield families from the Phelpses could be sued along with the Phelpses -- raises a very large red flag that there is something amiss with Snyder's legal theory.

But that's not all. Another big problem with extending Frisby's protection of the home to funerals is finding a stopping point. Frisby says homes are "unique" and thus support an exception to normal First Amendment rules. If that exception is extended, though, it is no longer "unique," and others can try to claim it as well. Hospitals, churches, schools, and courts, for example, all have colorable claims to "special" status. Is Snyder asking the Court to open a Pandora's Box of restrictions on public demonstrations?

Of Prophets and Public Figures

In their brief, the Phelpses assert that they "act out of a love for God, the Bible, and their fellow citizens" and are "motivated to warn people not to go to hell" and to "prevent more" deaths like that of Snyder's son. This self-serving characterization is unlikely to persuade the Court, given the Phelpses' use of signs explicitly evincing hatred and proclaiming, "Thank God for 911."

More helpful in constitutional terms are the facts that the Phelpses held their protest on public property, completely obeyed local laws and police directives, and were not even visible or audible to Snyder. The Phelpses did not obstruct the funeral, did not enter the church, and ceased their demonstration before the funeral service began.

The Phelpses dilute these crucial factual points, however, with weak legal arguments. They claim that Albert Snyder -- an otherwise obscure individual -- is somehow a "public figure" for First Amendment analysis. They also claim there is "nothing unlawful about targeting speech to or about a person," yet that is plainly inaccurate: personally directing speech is precisely what makes threats and fighting words fall into exceptions to the First Amendment.

The Oral Argument

At the oral argument, the Supreme Court posed numerous questions to counsel for both sides. The Justices seemed uniformly skeptical of the Phelpses' argument that Snyder had become a public figure in this case. On the other hand, the Justices were troubled at the notion that a law-abiding picket in a public place, and a website posting on the Internet, though admittedly tasteless and obnoxious, could give rise to damages liability. Justices queried both sides what lines could be drawn to navigate between the extremes of, on the one hand, abolishing the IIED tort altogether when speech is used to inflict the distress, and, on the other, leaving innocent persons without remedy when they are subjected to grotesque, in-your-face, verbal cruelty.


The Supreme Court has plenty on its plate as it attempts to sort out, in dispassionate pursuit of the law, the constitutionally correct resolution of this emotionally wrought case.

Walter M. Weber is Senior Litigation Counsel at American Center for Law and Justice.

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