The Supreme Court Case of Snyder v. Phelps: Testing America's Commitment to Protecting Even the Speech We Most Condemn
	By VIKRAM DAVID AMAR and ALAN BROWNSTEIN
	Friday, October 8, 2010

It is often said, albeit sometimes for rhetorical effect, that the First Amendment protects the speech that society hates just as rigorously as it protects the speech we all value. In some ways, Snyder v. Phelps -- a case argued in the Supreme Court this week -- tests our commitment to this principle as severely as has any dispute in recent memory.

The lawsuit involves a federal jury's verdict in Maryland. The verdict imposed a nearly eleven-million-dollar damage judgment against the Westboro Baptist Church, based in Kansas, whose members demonstrate at the funerals of military personnel killed in Afghanistan and Iraq. Even after it had been reduced by the judge, the verdict awarded to Albert Snyder, the father of a Marine Corporal killed in Iraq, consisted of millions of dollars in punitive damages on his claims of invasion of privacy and intentional infliction of emotional distress arising out of the defendants' protests at his son's funeral.

Members of the defendant church regularly picket the 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.

There is virtually unanimity among Americans of all religions or political persuasions that the expressive conduct of the defendants, directed at the mourners attending a funeral of a soldier killed in Iraq, was despicable and contemptible.

Yet the Phelps case does raise important questions about the government's ability, consistent with the First Amendment, to protect individuals who are uniquely vulnerable from hurtful speech at particular times and locations. In this column, we take up the question of whether certain kinds of speech, when directed at funeral mourners, can be restricted without running afoul of constitutional guarantees and, assuming that some limitations on such speech are permissible, whether certain forms of restrictions on speech are more or less constitutionally- appropriate ways of accomplishing this goal.

A Seminal Case: The Precedent That Allowed American Nazis to March in Skokie

We begin by readily acknowledging that offensive or disturbing speech in a generically open and public venue may not ordinarily be punished or prohibited, notwithstanding the sincere and predictable discomfort some members of the audience will likely experience when they are confronted with such expressive activity. That is the doctrinal starting point our analysis must accept, and from which it must proceed.

One of the seminal illustrations of this principle is the decision of the U.S. Court of Appeals for the Seventh Circuit in Collin v. Smith , which upheld the right of members of an American Nazi party to march through the streets of Skokie, Illinois. At the time, over half of the population of Skokie was Jewish, and several thousand of its residents were survivors of the Holocaust. Notwithstanding the emotional and psychological cost borne by many of the town's residents as a result of allowing the proposed demonstration to proceed through the town's streets, the court rebuffed Skokie's varied legal efforts to prevent the Nazi event from taking place.

There are features of Collin, however, that may justify its result to skeptics and limit its sweep. The demonstration at issue in Skokie involved a short march (lasting about 30 minutes) in front of the Village Hall in town. Direct exposure to the march could have easily been avoided. Moreover, the ordinances adopted by Skokie to prevent the Nazi demonstration, struck down by the court, would have "declare[d] the entire Village, at all times, a privacy zone that may be sanitized from the offensiveness of Nazi ideology and symbols."

Collin and similar cases need not be read to protect the right of Nazis to picket Jewish funeral or burial services, insult the mourners, and rejoice in the death of the person being interred; such speech may go well beyond being merely offensive or disturbing.

Two Characteristics of Speech That May Leave It Outside the First Amendment's Protection

The difficulty, of course, is explaining in coherent and workable terms when and why speech goes from being offensive but completely protected, to something else that is more regulable. We offer in this column two characteristics--both of which are present in the Phelps scenario--drawn from various lines of cases that, for us at least, offer the real possibility of principled line-drawing: (1) the special and generally-recognized vulnerability of the victims, and (2) improper and disrespectful acts of instrumentalization of the victim on the part of the speaker. (In other words, the speaker is attempting to use the victim as the instrument by which he promulgates his message.)

Specifically, in Phelps , we may want to take into account the unique vulnerability of audience members in special locations and times such as funerals. We may also want to consider the uniquely demeaning way in which these funeral hecklers were trying to use the mourners as stage props, rather than an audience.

These two factors make the Phelps situation very different than the prohibition of a march through the main street of a town simply because some residents would be offended by the demonstrators' message. As one of us has written earlier, expressive activity involving an issue of public concern becomes more regulable "when the speaker's message at a particular time and place, or conveyed in a specific manner, produces special discomfort that substantially exceeds any distress that may result from the content of the speaker's message alone."

The First Characteristic: Vulnerability on Account of Place or Circumstance

First Amendment case law recognizes that some persons who occupy some spaces should not have to be subjected to certain kinds of invasive speech. In Frisby v. Schultz, for example, the Supreme Court upheld a municipal ban on residential picketing that had been adopted in response to the picketing by anti-abortion protestors of the home of a physician who performed abortions. One way of understanding the Court's decision in Frisby is that the home should be a safe place where individuals can recharge and replenish, and one in which individuals should not have to feel under siege.

A similar concern underlies the state's interest in protecting vulnerable individuals who are recovering from injury or ailment from exposure to disturbing expression that may result in increased risk of physical or emotional harm or delayed healing. The Court has frequently recognized the importance of this concern in labor-law cases involving organizing drives or picketing at health care facilities.

In this sense, the numerous cases adjudicating restraints on anti-abortion protestors outside medical clinics follow well-trodden ground in recognizing the weight to be assigned to this interest of vulnerable patients. These cases provide the best illustrations of the willingness of courts to restrict expressive activities that impose serious emotional and medical risks on a vulnerable and arguably captive audience.

But is it really fair, in terms of vulnerability, to analogize funeral mourners to women seeking abortions or hospital patients receiving treatment? We think so. Indeed, we see a greater consensus, in the law and in society, about the vulnerability of mourners attending funerals than exists for almost any other group or circumstance.

In fact, a specific line of intentional infliction of emotion distress cases has an obvious relationship to the Phelps litigation. A longstanding subset of cases addressing outrageous conduct that is knowingly directed at persons who are known to be uniquely vulnerable to distress involves the mishandling of dead bodies, and interference with the rights of family members to arrange for the proper burial of their loved ones. Civil liability has been held to be particularly appropriate in these cases because "mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it."

To many courts, the emotional toll of the death of a family member is commonly understood and imposes a duty of common decency upon the living. The vulnerability of mourners is as acute as the deliberate interference with funerals is despicable. There are few lines of authority where the tort of intentional infliction of emotional distress -- usually very difficult to successfully plead and prove -- is so frequently recognized and upheld.

The Second Characteristic: The Harassment Paradigm and the Improper Instrumentalization of the Victim

There is yet another important line of cases that argues in favor of some permissible limits on funeral protestors engaged in the kind of expressive conduct perpetrated by the Phelps defendants. Courts have often distinguished speech that targets individuals from more public discourse, and have upheld restrictions on hurtful speech that is directed at single victims.

Telephone harassment statutes, for example, are regularly enforced and almost always upheld against First Amendment challenges. In this circumstance, speech that is intended to annoy, disturb, or harass the caller's target is subject to criminal prosecution. If the messages expressed in the signs held up by defendants in Phelps were communicated through telephone calls to the home of grieving parents of a soldier killed in action shortly before or after his funeral, we believe the caller could be prosecuted for telephone harassment and his conviction would be upheld against constitutional challenge. The First Amendment does not protect the harassment of mourning parents through telephone calls celebrating their son's death with comments like "Thank God for dead soldiers."

One might try to distinguish telephone harassment from other expressive activities, however, because it necessarily occurs out of the public eye, and it communicates exclusively to a single targeted victim in his home. Speech on a public sidewalk, even near a funeral, by comparison, is visible to the public and necessarily reaches a broader audience. Yet convictions under telephone-harassment statutes have been upheld when calls are directed not to private places but to a business or government office.

More importantly, if a group placing telephone calls to the parents of soldiers killed in action expressing the caller's delight at the death of a son or daughter is proscribable harassment, then it does not stop being proscribable harassment if the group makes its harassment more public by inviting the media into a room to watch its members operating a phone bank through which they are placing such calls to the bereaved. Similarly, a speaker would not escape punishment for the crime of telephone harassment if he used a cell phone to publicly place a disparaging call to grieving parents while standing at the podium of a political rally.

Thus, although the legitimacy of imposing liability on protestors at funerals under the law of intentional infliction of emotional distress may depend on whether the protestors' expressive activity can be characterized as being far closer to private harassment than public discourse, we believe the case against such defendants is tenable. The point that the content of the message is a matter of public concern would not be dispositive of this issue.

An Important Aspect of the Speech at Issue in Phelps : Turning Persons Into Unwilling Instruments of a Message They Do Not Endorse

Of special importance, in making use of the harassment paradigm, is the fact that the defendants in cases like Phelps are targeting the mourners attending funerals in a distinctive way--essentially using them instrumentally as a means to reach other persons.

The "especially offensive" nature of residential picketing, found by the Frisby Court to be a sufficient justification for upholding the challenged regulation, pales in comparison to the extraordinarily hurtful expressive conduct at issue in Phelps. What makes these protests even less worthy of protection than conventional examples of intrusive harassment is that the expressive activity is directed at mourners attending funerals not as a means to speak to or about them, but rather as a means to magnify the protestors' audience for their public message. The mourners are not so much an audience as a means to that end.

While the media might ignore the offensive speech communicated by the Westboro Church if it was expressed at an isolated rally in a public park, the outrageous disturbance of a military funeral is newsworthy precisely because it is such an abhorrent and extreme act. In essence, the speakers are using the mourners, and their vulnerable and sympathetic position, as a stage prop to get their message out to a different and large audience than they could otherwise have reached.

Even if this effort to use the funeral mourners as a springboard to other audiences is borne out of an ultimate purpose to persuade some group of national listeners, that does not lessen the harassing nature of the speech. Indeed, many harassers enjoy and seek out publicity (albeit, sometimes anonymously) over their harassing acts. And just like the defendants in Phelps, many perpetrators of harassment might be motivated ultimately by weird but sincere desires to convince a reluctant world about the wisdom of their fringe political beliefs.

The Compelled Speech Doctrine: Another Basis for Banning Speech Like That of Phelps's Group

The harassment cases are not the only line of decisions suggesting that the First Amendment does not necessarily protect--and indeed frowns upon--a speaker's attempt to involuntarily use or instrumentalize another person as a means of getting a message out. The so-called "compelled speech" line of cases can also be understood to reject the ability of speakers to turn other persons into the mere means of--rather than the audience for--their speech.

In West Virginia State Bd. of Educ. v. Barnette, for example, the Court rejected an attempt to force schoolchildren to become the tools, the instruments, of the government's efforts to inculcate civil loyalty by mandating the universal recitation of the Pledge of Allegiance.

We recognize, of course, that the Phelps defendants are not conventional state actors in the way the Board of Education in Barnette was, and we do not necessarily argue here that the constitutional rights of the mourners are being abridged. Yet, even if one concludes that there is no state action present in the instrumentalization occurring in Phelps--a complicated question--our analogies to compelled-affirmation-of-belief cases still serve an important analytic purpose. Clearly, the dignitary and autonomy interest of individuals in not being conscripted into conveying a message that is antithetical to their beliefs is recognized to be of sufficient First Amendment value to deserve protection against government abuse.

Building on this foundation, we contend that when the government restricts private speech to further that dignitary and autonomy interest, it is regulating the speech of some individuals for the purpose of protecting the First Amendment-related interests of other persons.

Having free-speech values on both sides of the First Amendment balance is hardly unusual. It commonly occurs when government uses a content-neutral permit system to limit the speech opportunities of some speakers on public property in order to provide opportunities for other speakers to use the same forum. Similarly, there are free-speech values on both sides of the First Amendment scale when the state restricts expressive activity in order to protect non-consenting third parties from being forced to facilitate a message they reject and abhor. And when there are First Amendment values present on both sides of the balance, the government should -- and, under precedent, does -- have more latitude to regulate.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

This column derives from an essay that Professors Amar and Brownstein wrote for the online component of the Cardozo Law Review called "de novo."