On Wednesday, the father of a dead Marine will ask the Supreme Court to uphold a multi-million dollar verdict against members of the church congregation that picketed his son’s funeral. The congregation, lead by its pastor, the militantly homophobic Fred Phelps, persuaded a federal court of appeals that its message was hyperbole and that the First Amendment bars the lawsuit. Albert Snyder, the bereaved father, contends that the First Amendment does not protect speech aimed at private individuals and designed to cause emotional distress.
Constitutional scholars have predicted that Snyder will find a skeptical audience in the Roberts Court. The Court, they observe, regularly sides with free-speech advocates in close First Amendment cases. The paramount example from last term is the Citizens United campaign-finance case. Less momentous but perhaps more relevant to Snyder’s petition is United States v. Stevens, in which an eight-justice majority struck down a federal prohibition on the sale of “crush videos,” a bizarre genre of film that glorifies the killing of small animals, usually by women in stilettos. Writing for the majority, Chief Justice Roberts cautioned against carving out discrete categories of speech as unfit for constitutional protection.
Snyder and his lawyers reject any attempt to characterize Phelps’s conduct as hyperbole. They insist that there is something uniquely vicious about his message and the way he voices it. While some bigots are content to wallow in their own prejudice, Phelps wants America to hate gays with his same fervor, so he links homosexuality to the one issue certain to weigh on the American psyche — military fatalities. In his view, God kills U.S. soldiers to punish America for tolerating homosexuality. Foul as that proposition is, it takes on a crueler dimension with Phelps’s contention that God’s smiting of our soldiers is a good thing, because otherwise America will never awake to the fact that it has institutionalized sin. Phelps and his congregation have been on the road with this message for years, and it is this message that Phelps brought to the Snyder funeral, emblazoned on signs with signature slogans — “God hates fags”; “Thank God for dead soldiers — and others — “Semper Fi fags”; “You’re going to hell” — evidently targeted at the subject of the funeral, lance corporal Matthew Snyder.
Snyder’s appeal rests on a legal distinction between speech directed at the public and speech targeted at private individuals. Acknowledging that the First Amendment preserves its strongest safeguards for matters of public concern, Snyder contends that Phelps directs his message at captive and vulnerable audiences, in this case a family burying the dead. Phelps retorts that the public/private distinction is irrelevant, and that the First Amendment protects any speech which one cannot reasonably interpret as stating actual fact. His defense thus lies in the sheer absurdity of his statements: in his view, so long as his speech is too outrageous to be deemed defamatory, that is, so long as it cannot reasonably be construed as asserting something factual, the law is indifferent toward who’s listening and where.
Snyder and his lawyers make a persuasive case for a more nuanced approach. They rely on a set of precedents involving lawsuits challenging speech under state tort laws. In each case, the Supreme Court abstains from hard-and-fast rules in favor of a textured approach that balances the interests on each side. The doctrine of defamation is an instructive example, an analysis carefully calibrated to reflect the competing interests at play. For a public figure to prevail in a libel suit, he must show not only a false statement but also “actual malice” — proof that the writer knew the fact was false but published it anyway. But a non-public litigant has a lighter burden, and the Supreme Court has declined to extend the actual-malice standard to private litigants. Drawing on these doctrines, Snyder accuses Phelps of attempting to solidify a body of law defined by its give and take.
A balanced approach seems the more likely outcome here. Such an approach would permit the justices to consider not only the target of the speech and the setting in which it was made, but also the state’s interest in providing remedies for citizens who’ve been denied their right to peacefully honor the dead. More importantly, as at least one expert has pointed out, it allows them to distance themselves from Fred Phelps without wholly abandoning the First Amendment.
Samuel Singer is a recent graduate of Emory Law School and a Chicago-based attorney. His commentaries on law and politics have appeared in various publications, including The Beachwood Reporter and Culturekiosque.com. He has also reported and written articles for The Chicago Tribune and Market News International.