The Eleven-Million-Dollar Judgment Against the Westboro Baptist Church For Protesting At a Funeral: Did It Violate the First Amendment?

Recently, a federal jury's verdict in Maryland imposed a nearly $11 million damage judgment against the Westboro Baptist Church, based in Kansas, whose members demonstrate at the funerals of military personnel killed in Afghanistan and Iraq. The verdict raises important and cutting-edge First Amendment questions that are being debated among free speech analysts.

The Facts: What Led to the $11 Million Verdict

The verdict awarded to Albert Snyder, the father of a Marine Corporal killed in Iraq, consisted of almost $3 million in compensatory and $8 million in punitive damages on his claims of invasion of privacy and intentional infliction of emotional distress arising out the defendants' protests at his son's funeral.

Members of the defendant church regularly picket funerals of fallen soldiers, carrying signs with messages such as "Thank God for dead soldiers" and "God hates f-gs." The Church apparently believes - and wants people to understand - that American soldiers are dying because God is punishing America for being too tolerant of homosexuality, and that the remedy for these soldier deaths is for America to be less open to gays and lesbians.

The Controversy

The Church has vowed to appeal the judgment, and many First Amendment analysts expect the verdict to be overturned on constitutional grounds. The topic has generated discussions on the law professors' religionlaw listserv and in other fora, and what follows is part of that larger conversation in the academy - a dialogue between us, as co-authors of this column, about whether the Constitution can ever permit regulation of this kind of speech, which though obviously odious, purports to focus on a public policy issue, America's treatment of homosexuality and God's reaction to it.

Vik Amar: Alan, I know you are not a First Amendment absolutist, so I'm curious about what you think government might do to deter this detestable speech taking place near a sacred and somber event at which mourners are quite vulnerable. We both know the Supreme Court has repeatedly placed limits on the ability of state tort law to reach aggressive speech directed towards public figures or about matters of public concern. For example, in New York Times v. Sullivan, the Court said a public official couldn't maintain a libel suit unless he could prove by clear and convincing evidence that the speaker knew the injurious speech in question was false or was at the very least reckless about its falsity. And in Falwell v. Hustler, the Court extended the principles of Sullivan to the state law tort of intentional infliction of emotional distress. In the present case, the objectionable speech wasn't even factually falsifiable - views about God's wrath can't easily be disproved. So isn't tort liability going to be a tough First Amendment sell?

Alan Brownstein: You're right to point to Sullivan and Falwell. But the case law here is pretty sparse. When the plaintiffs are private persons, rather than public officials or public figures, the constitutional limits are less substantial, and perhaps less clear. Moreover, the speech in Sullivan and Falwell was being punished solely because of its content. There was never an issue about context, that is, whether the speech could be expressed in one place but not another.

Without focusing to much on the specifics of the Snyder case, I think there may be room for a well-crafted statute to limit the kinds of things indescribably insensitive folks might try to do at a burial service. And I would draw on harassment laws as an example. Harassment can be punished, even though what constitutes harassment is not always completely legally defined or judicially explained. But laws that prevent you from calling me on my phone at 3 A.M. and bothering me can and should be upheld, even though you are engaged in expressive activity when you make that call.

Amar: Interesting. And note that the harassment laws that have been upheld, though not always analyzed carefully, are "content-based" - that is, they apply differently depending on the content of the speech. If I'm calling you repeatedly at 3 A.M. to tell you your house is on fire (assuming I'm not making that up), then I'm not guilty of harassment, even though I would be if I had a different message. And note also that my harassing message could relate to a matter of public concern and still get me in trouble. I can't call you up at 3A.M. even if the reason is that I want to urge you to vote for Hillary Clinton. Finally, it seems to me the harassment model shows that the line between public and private space isn't always important; I can be guilty of harassing you by calling you at 3 A.M. at the office, or on your cellphone (which you use in public), rather than at home.

Brownstein: True enough. You better not call me at 3 A.M., at home or anywhere else, unless my house is on fire, or unless you become my Dean. Another example of proscribable public harassment might involve tormenting a student of color on a college campus. Just because someone has the right to believe and proclaim that race-based affirmative action is bad policy and morally wrong does not mean he can stand outside a campus lecture hall and shout from a distance, every time a student of color walks in or out, that s/he does not to deserve to attend the university and should never have been admitted.

Note, however, that anti-harassment law often takes the form of a statutory prohibition, rather than a vague common-law tort remedy.

Amar: That seems relevant, though perhaps not crucial, for a few reasons. First a statute probably reflects the legislature's sense that particular expressive conduct is distinctively injurious to important, widely-shared interests. A jury, by contrast, implementing generic tort law, cannot claim to have as broad and as deep a democratic mandate. Also, a statute can build in procedural protections and substantive limitations, such as a ban or cap on punitive damages.

Brownstein: Which is one reason I think tort judgments like the one in the Snyder case, based on more malleable intentional infliction of emotional distress standards, are quite vulnerable to First Amendment review. The question is whether a well-drawn statute could succeed where state tort common law may very well fail.

Amar: Well, that takes us to the heart of things. For me, the challenge of any statute would be to define the scope of unprotected speech narrowly enough so as not to create too much of a slippery-slope problem. The key would be identifying particular places and events - like funerals and weddings - where we have made a societal judgment that people's interests in being left alone are very great, and a speaker's interests in intrusive speech is particularly weak. How would you draft such a statute?

Brownstein: A content-neutral time, place, or manner rule might prohibitthe display of signs or bannerswithin a set distance from the entrance to a cemetery during the time when a burial service occurs. A content-discriminatory law might be more focused and narrow in its application. A law like the one reviewed in Boos v. Barry (which involved limits on speech near foreign embassies) could be drafted to prohibit(with the same time and place limits)the display of signs or banners that hold the decedent up to contempt or ridicule (or some other language that captures messages suggesting the decedent deserved to die or was unworthy to be mourned). Unlike the law struck down in Boos v. Barry, however, the goal here would not be to protect foreign embassies from criticism, but rather to protect thedecorum of the burial service and the dignity of the mourners. I think the state may have a compelling interest in protecting the ability of grieving family members and friends to bury their dead in peace without being subjected to offensive disturbances.

Amar: How would such a law be different from laws imposing restrictions on protestors outside a clinic providing abortion services, which are often challenged (and sometimes struck down) on First Amendment grounds?

Brownstein: There are two factors here. One is the importance of the state's interest in restricting speech, and the other is the value of the speech itself in the context in which it is expressed. Restrictions imposed on demonstrators outside a clinic providing abortion services raise hard questions because both the state's interests and First Amendment values that are at stake deserve serious attention. The state can assert compelling privacy and medical health interests in justifying restrictions onspeech to patients entering a clinic for medical treatment.

But the demonstrators' free speech arguments have considerable merit there as well. Abortion protest speech is directed at a specific audience whom the speaker is trying to persuade to change her decision and her behavior. The location where the speech occurs is chosen because the audience the speakers want to persuade is at this location, may be difficult to reach or even identify in other situations, and is about to engage in the very conduct the speaker is trying discourage. This goes to the very core of what the First Amendment protects -- a speaker's opportunity to inform and to persuade, on the merits, the very listeners they are trying to reach.

With regard to these protests at burial services, I think the state's interests in protecting the decorum of burial services and the dignity of mourners is also very important. But here, free speech values on the other side are substantially diminished. The purpose of these protests doesn't seem to be to persuade the mourners of the merits of the protestors' arguments, much less to change their immediate behavior. Protests at the burial services of dead soldiers are designed to cause great pain to the mourners and to take advantage of their distress to gain exposure for the protestors' message. There are no core First Amendment values undermined if the protestors are required tomove their demonstration to some other, less inappropriate, but equallypublic location -- perhaps in front of a military recruiting office. There is simply no First Amendment right to use someone else's time of deep grief as a prop or platform to get one's (otherwise unrelated) message out by making the evening news.

The difference in free speech values in the two settings can be seen if we consider another kind of protest outside a medical clinic or hospital, and compare it to the abortion protest example. Suppose, instead of anti-abortion demonstrators outside a clinic providing abortion services trying to reach women planning to have an abortion, protestors set up shop outside a cancer treatment facility. These protestors hold up signs and banners to communicate the following messages to the families of terminal patients visiting their dying relatives and to critically ill patients themselves who are arriving for chemotherapy or surgery: "These cancer patients deserve to die; God is punishing them because of America's policies about abortion or gay rights" (or any other public policy the protestors condemn.) Exactly what is accomplished by allowing protestors to communicate this message in this location to this audience, other than causing very vulnerable people additional and extraordinary distress? I simply do not see the same free speech values at stake in this situation that I think exist in the abortion protest context.

Amar: I see your point, but I'm not sure I'm completely comfortable that lines can be drawn and held. You say, for example, that the Westboro Baptist folks aren't trying to reach any particular audience at the funeral. But wouldn't they contend they need to speak directly to the mourners (just as abortion protestors need to speak to the women getting the abortions), because the mourners are their most important audience; if they can convince the mourners that their views about the reasons for God's wrath and actions are correct, what better folks to have join the cause than persons whose family members have been lost and who will therefore passionately work hard against the public policies that caused their deep personal grief?

Perhaps my discomfort can be seen by considering a different kind of protests at military funerals. Suppose demonstrators were criticizing not gay tolerance policies, but the war in Iraq itself, saying that the present Administration's policies are responsible for the grief being experienced by the mourners. Wouldn't that have to be allowed, even though, as a practical matter, many mourners would be upset by this, very few mourners would have anything but contempt for the protestors, and virtually no mourner would actually be convinced by the protests to do or believe something he wasn't already inclined to do or believe?

Brownstein: I could be convinced that the state could prohibit all protests within a certain distance from burial services. And I would agree that the state could restrictanti-war protestors who, for example,display banners outside a cemeterythat condemn the soldiers being buried for participating in an immoral war -- although I recognize that there is more of a connection here between the site of the protest and the protestors message than exists in the Snyder case. The hardest question for me would be a demonstration outside the cemetery where a soldier is being buried that does not condemn the decedent, but rather praised him for his dedication to duty and loyalty to his country. What the protestors in such a case would be arguing is that the lives of these soldiers should not be wasted in pursuing a useless war. Here, the decedent is not maligned, but I think these protests do nonetheless disturb the decorum of the burial service for political ends -- and they conscript unconsenting mourners to serve as the backdrop for their message and to amplify its expression.

Hard questions like these, of course, are what make the issue of restricting the protests in the Snyder case so difficult. The problem, at least for me, isn't justifying restrictions on these despicable protests. It is trying to develop criteria that allow legislatures and courts to prohibit these protests while providing adequate guidance for the resolution of other cases -- thattest our commitment to freedom of speech because someone or some group will have to bear the highcost of protecting this freedom, the harm that free speech often causes.