SNYDER v. PHELPS
The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words."
Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?
Legal provision: First Amendment
Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."
OPINION OF THE COURT
SNYDER V. PHELPS
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, SR., et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[March 2, 2011]
Chief Justice Roberts delivered the opinion of the Court.
A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case.
Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Brief for Rutherford Institute as Amicus Curiae 7, n. 14.
Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral. Local newspapers provided notice of the time and location of the service.
Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”
The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. App. to Brief for Appellants in No. 08–1026 (CA4), pp. 2282–2285 (hereinafter App.). That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. Id., at 3758. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id., at 2168, 2371, 2286, 2293.
The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. Id., at 2084–2086.[Footnote 1]
Snyder filed suit against Phelps, Phelps’s daughters, and the Westboro Baptist Church (collectively Westboro or the church) in the United States District Court for the District of Maryland under that court’s diversity jurisdiction. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Westboro moved for summary judgment contending, in part, that the church’s speech was insulated from liability by the First Amendment. See 533 F. Supp. 2d 567, 570 (Md. 2008).
The District Court awarded Westboro summary judgment on Snyder’s claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary elements of those torts. Id., at 572–573. A trial was held on the remaining claims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it. Id., at 588–589. Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated pre-existing health conditions.
A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, including a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.
In the Court of Appeals, Westboro’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected Westboro’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222–224.[Footnote 2]
We granted certiorari. 559 U. S. ___ (2010).
To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones, 281 Md. 560, 565–566, 380 A. 2d 611, 614 (1977). The Free Speech Clause of the First Amendment—“Congress shall make no law … abridging the freedom of speech”—can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50–51 (1988).[Footnote 3]
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ … is ‘at the heart of the First Amendment’s protection.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758–759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).
“ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145–147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).
We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that “the boundaries of the public concern test are not well defined.” San Diego v. Roe, 543 U. S. 77, 83 (2004) (per curiam). Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.
Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83–84. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492–494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387– 388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987).
Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” 472 U. S., at 762. The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” 543 U. S., at 84.
Deciding whether speech is of public or private concern requires us to examine the “ ‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ ” Dun & Bradstreet, supra, at 761 (quoting Connick, supra, at 147–148). As in other First Amendment cases, the court is obligated “to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984) (quoting New York Times, supra, at 284–286). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.
The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781–3787. While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.
Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech—its connection with his son’s funeral—makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U. S., at 146, and the funeral setting does not alter that conclusion.
Snyder argues that the church members in fact mounted a personal attack on Snyder and his family, and then attempted to “immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its “honestly believed” views on public issues. Garrison, 379 U. S., at 73. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter. Contrast Connick, supra, at 153 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).
Snyder goes on to argue that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views—in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation’s sinful policies.
Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ ‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474, 480 (1988).[Footnote 4]
That said, “[e]ven protected speech is not equally permissible in all places and at all times.” Id., at 479 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799 (1985)). Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach—it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. §10–205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18–19, n. 2 (listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.[Footnote 5]
We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U. S., at 477. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753, 768 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.
Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.
The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of … ‘vehement, caustic, and sometimes unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.
For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.
The jury also found Westboro liable for the state law torts of intrusion upon seclusion and civil conspiracy. The Court of Appeals did not examine these torts independently of the intentional infliction of emotional distress tort. Instead, the Court of Appeals reversed the District Court wholesale, holding that the judgment wrongly “attache[d] tort liability to constitutionally protected speech.” 580 F. 3d, at 226.
Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral. Brief for Petitioner 45–46. We do not agree. In most circumstances, “the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, … the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975) (internal quotation marks omitted). As a result, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U. S. 15, 21 (1971).
As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept., 397 U. S. 728, 736–738 (1970), and an ordinance prohibiting picketing “before or about” any individual’s residence, Frisby, 487 U. S., at 484–485.
Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.
Because we find that the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion—the alleged unlawful activity Westboro conspired to accomplish—we must likewise hold that Snyder cannot recover for civil conspiracy based on those torts.
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.” Florida Star v. B. J. F., 491 U. S. 524, 533 (1989).
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its con-tribution 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.
The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.
It is so ordered.Footnote 1
A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral” (emphasis added)); this Court’s Rule 14.1(g) (petition must contain statement “setting out the facts material to consideration of the question presented”). Nor did Snyder respond to the statement in the opposition to certiorari that “[t]hough the epic was asserted as a basis for the claims at trial, the petition … appears to be addressing only claims based on the picketing.” Brief in Opposition 9. Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case. See Ontario v. Quon, 560 U. S. ___, ___ – ___ (2010) (slip op., at 10–12).Footnote 2
One judge concurred in the judgment on the ground that Snyder had failed to introduce sufficient evidence at trial to support a jury verdict on any of his tort claims. 580 F. 3d, at 227 (opinion of Shedd, J.). The Court of Appeals majority determined that the picketers had “voluntarily waived” any such contention on appeal. Id., at 216. Like the court below, we proceed on the unexamined premise that respondents’ speech was tortious.Footnote 3
The dissent attempts to draw parallels between this case and hy-pothetical cases involving defamation or fighting words. Post, at 10–11 (opinion of Alito, J.). But, as the court below noted, there is “no suggestion that the speech at issue falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’ ” 580 F. 3d, at 218, n. 12; see United States v. Stevens, 559 U. S. ___ , ___ (2010) (slip op., at 5).Footnote 4
The dissent is wrong to suggest that the Court considers a public street “a free-fire zone in which otherwise actionable verbal attacks are shielded from liability.” Post, at 10–11. The fact that Westboro conducted its picketing adjacent to a public street does not insulate the speech from liability, but instead heightens concerns that what is at issue is an effort to communicate to the public the church’s views on matters of public concern. That is why our precedents so clearly recognize the special significance of this traditional public forum.Footnote 5
The Maryland law prohibits picketing within 100 feet of a funeral service or funeral procession; Westboro’s picketing would have complied with that restriction.
BREYER, J., CONCURRING
SNYDER V. PHELPS
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, Sr., et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[March 2, 2011]
Justice Breyer, concurring.
I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”
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. See Frisby v. Schultz, 487 U. S. 474 (1988). Moreover, suppose 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. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (“fighting words”).
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. Indeed, the state tort of “intentional infliction of emotional distress” forbids only conduct that produces distress “so severe that no reasonable man could be expected to endure it,” and which itself is “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.” Post, at 2–3 (opinion of Alito, J.) (quoting Harris v. Jones, 281 Md. 560, 567, 571, 380 A. 2d 611, 614, 616 (1977); internal quotation marks omitted). 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. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and state-protected (say, privacy-related) interests seriously conflict. Cf. Florida Star v. B. J. F., 491 U. S. 524, 533 (1989); Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984). That review makes clear that Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.
ALITO, J., DISSENTING
SNYDER V. PHELPS
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, Sr., et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[March 2, 2011]
Justice Alito, dissenting.
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.[Footnote 1] 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.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).
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). Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 53 (1988).
This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo-Torres v. Nickel, 321 Md. 642, 653, 584 A. 2d 69, 75 (1991) (“[R]ecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted)); Harris v. Jones, 281 Md. 560, 571, 380 A. 2d 611, 616 (1977) (the distress must be “ ‘so severe that no reasonable man could be expected to endure it’ ” (quoting Restatement (Second) of Torts §46, Comment j (1963–1964))).
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.’ ” Id., at 567, 380 A. 2d, at 614 (quoting Restatement (Second) of Torts §46, Comment d).
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. See 580 F. 3d 206, 216 (CA4 2009). They did not dispute that Mr. Snyder suffered “ ‘wounds that are truly severe and incapable of healing themselves.’ ” Figueiredo-Torres, supra, at 653, 584 A. 2d, at 75. 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.’ ” Harris, supra, at 567, 380 A. 2d, at 614. 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. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton,  2 Q. B. 57); see also Restatement (Second) of Torts §46, illustration 1. 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.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). 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 allowed. (There are more than 4,000,000 miles of public roads in the United States.[Footnote 2]) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.[Footnote 3]) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.[Footnote 4]) 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. Ante, at 1. They have also picketed the funerals of police officers,[Footnote 5] firefighters,[Footnote 6] and the victims of natural disasters,[Footnote 7] accidents,[Footnote 8] and shocking crimes.[Footnote 9] And in advance of these protests, they issue press releases to ensure that their protests will attract public attention.[Footnote 10]
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”[Footnote 11]—their announcement was national news,[Footnote 12] and the church was able to obtain free air time on the radio in exchange for canceling its protest.[Footnote 13] 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.[Footnote 14]
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 … . Now in Hell—sine die.” Supp. App. in No. 08–1026 (CA4), p. 158a. 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. App. to Brief for Appellants in No. 08–1026 (CA4), pp. 3787, 3788 (hereinafter App.). Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell—sine die.” Id., at 3783.
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.” Id., at 3781–3787. 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!” Id., at 3788.[Footnote 15] 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 condemned 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?” Id., at 3791.
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,[Footnote 16] 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.
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.” Ante, at 1 (concurring opinion).
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. Ante, at 8. 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, see ante, at 9, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation—“to increase publicity for its views,” ibid.—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].” See ante, at 11. 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. See ante, at 10–11. 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. See ante, at 11, n. 5. 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. See National Archives and Records Admin. v. Favish, 541 U. S. 157, 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their … grief,” ibid., 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.
In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.
First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents’ speech was “ ‘directed specifically at the Snyder family.’ ” 580 F. 3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents’ statements targeted the Snyders.
Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents’ speech was so “ ‘offensive and shocking as to not be entitled to First Amendment protection.’ ” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment, and the only question for the jury was whether the elements of the IIED tort were met.
Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual. See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases—Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46—but neither supports the broad proposition that the Court of Appeals adopted.
Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort.
Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure. Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U. S., at 56. Unless a caricature of a public figure can reasonably be interpreted as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.
Because I cannot agree either with the holding of this Court or the other grounds on which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings.[Footnote 17]
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. I therefore respectfully dissent.Footnote 1
See 580 F. 3d 206, 213–214, 216 (CA4 2009).Footnote 2
See Dept. of Transp., Federal Highway Administration, Highway Statistics 2008, Table HM–12M, http://www.fhwa.dot.gov/policyinformation/ statistics/2008/hm12m.cfm (all Internet materials as visited Feb. 25, 2011, and available in Clerk of Court’s case file).Footnote 3
See Trust for Public Land, 2010 City Park Facts, http:// www.tpl.org/content_documents/CityParkFacts_2010.pdf.Footnote 4
See United States Conference of Catholic Bishops, Catholic Information Project, http://www.usccb.org/comm/cip.shtml#toc4.Footnote 5
See http://www.godhatesfags.com/fliers/20110124_St-Petersburg-FL- Dead-Police.pdf.Footnote 6
See http: //www.godhatesfags.com / fliers/20110120_Dead-Volunteer-Firefighter-Connecting_the_Dots-Baltimore-MD.pdf.Footnote 7
See http://www.godhatesfags.com/fliers/20110104_Newburg-and-Rolla-MO-Tornado-Connecting-the-Dots.pdf.Footnote 8
See http://www.godhatesfags.com/fliers/20101218_Wichita-KS-Two-Dead-Wichita-Bikers.pdf.Footnote 9
See http://www.godhatesfags.com/fliers/20110129_Tampa-FL-God-Sent-Military-Mom-Shooter-to-Kill-Kids.pdf.Footnote 10
See nn. 5–9, supra.Footnote 11
See http://www.godhatesfags.com/fliers/20110109_AZ-Shooter-Connecting-the-Dots-Day-2.pdf.Footnote 12
See, e.g., Stanglin, Anti-Gay Church Group Plans to Picket Tucson Funerals, USA Today, Jan. 10, 2011, http://content.usatoday.com/communities/ ondeadline / post / 2011/01/anti-gay-church-group-plans-to-picket-tucston- funerals/1; Mohanani, Group to Picket 9-Year-Old Tucson Victim’s Funeral, Palm Beach Post, Jan. 11, 2011, http://www.palmbeachpost.com/ news/nation/group-to-picket-9-year-old-tucson-victims-1177921.html; Mehta & Santa Cruz, Tucson Rallies to Protect Girl’s Family from Protesters, Los Angeles Times, Jan. 11, 2011, http://articles.latimes.com/ 2011/jan/11/nation/la-na-funeral-protest-20110112; Medrano, Funeral Protest: Arizona Rallies to Foil Westboro Baptist Church, Christian Science Monitor, Jan. 11, 2011, http://www.csmonitor.com/USA/2011/ 0111/Funeral-protest-Arizona-rallies-to-foil-Westboro-Baptist-Church.Footnote 13
See Santa Cruz & Mehta, Westboro Church Agrees Not to Take Protest to Shooting Victims’ Funerals, Los Angeles Times, Jan. 13, 2011, http://articles.latimes.com/2011/jan/13/nation/la-na-funeral-protest-20110113; http://www.godhatesfags.com/fliers/20110112_AZ-Shooter-Mike-Gallagher-Radio-Exchange.pdf.Footnote 14
See Steinberg, Air Time Instead of Funeral Protest, N. Y. Times, Oct. 6, 2006, p. A14.Footnote 15
The Court refuses to consider the epic because it was not discussed in Snyder’s petition for certiorari. Ante, at 3, n. 1. The epic, however, is not a distinct claim but a piece of evidence that the 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. See 580 F. 3d, at 225 (“[T]he Epic cannot be divorced from the general context of the funeral protest”). The Court’s strange insistence that the epic “is not properly before us,” ante, at 3, n. 1, means that the Court has not actually made “an independent examination of the whole record,” ante, at 7 (internal quotation marks omitted). 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. See ante, at 9.Footnote 16
See 533 F. Supp. 2d 567, 577 (Md. 2008).Footnote 17
The Court affirms the decision of the Fourth Circuit with respect to petitioner’s claim of intrusion upon seclusion on a ground not addressed by the Fourth Circuit. I would not reach out to decide that issue but would instead leave it for the Fourth Circuit to decide on remand. I would likewise allow the Fourth Circuit on remand to decide whether the judgment on the claim of civil conspiracy can survive in light of the ultimate disposition of the IIED and intrusion upon seclusion claims.
ORAL ARGUMENT OF SEAN E. SUMMERS ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first today in Case 09-751, Snyder v. Phelps.
Mr. Summers: Mr. Chief Justice, and may it please the Court:
We are talking about a funeral.
If context is ever going to matter, it has to matter in the context of a funeral.
Mr. Snyder simply wanted to bury his son in a private, dignified manner.
When the Respondent's behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the State of Maryland.
Justice Antonin Scalia: Are we just talking about a funeral?
That's one of the problems I have with the case.
There was also this video that your client watched, right, later, after the funeral.
Mr. Summers: There was a flyer that was sent out prior to the funeral.
We have the funeral and we have what they described as the epic which was put on the Internet afterwards, which--
Justice Antonin Scalia: Right.
Well, what does that have to do with the funeral?
Mr. Summers: --As the district court explained, and the circuit court followed their logic, and I think the facts at trial confirmed this, that the epic was essentially a recap of the funeral protest itself.
Justice Antonin Scalia: That's fine, but it -- it does not intrude upon the funeral.
I mean, no.
You either have two separate causes of action -- one is the intrusion upon the funeral and the other is the harm caused by viewing this posting on the Internet -- but I don't see how they both relate to intrusion upon the funeral.
Mr. Summers: Well, the--
Justice Antonin Scalia: And they were just submitted to the jury as one big lump, right?
Mr. Summers: --Well, we had the flyer that was submitted, that was sent out before the funeral.
We have the facts of the funeral.
And yes, the epic did -- of course, we focused on the personal, targeted comments in the epic when we presented our evidence.
But yes, it was--
Justice Antonin Scalia: Suppose there hadn't been a funeral protest, just the epic.
Would that have supported the cause of action you assert here?
Mr. Summers: --I think that's a closer call.
But when we have the personal--
Justice Antonin Scalia: Yes or no?
Mr. Summers: --I would say yes, because we have the personal, targeted epithets directed at the Snyder family.
Justice Antonin Scalia: Even though it's -- he doesn't have to watch them?
They are just posted on the Internet.
Mr. Summers: That's correct, Justice Scalia.
Justice Antonin Scalia: It's his choice to watch them, but if he chooses to watch them he has a cause of action because it causes him distress.
Mr. Summers: Well, the -- he has a cause of action.
That doesn't mean he's going to win.
You still have the pleading standards, the summary judgment standards, and the motion to dismiss standards.
Justice Ruth Bader Ginsburg: Well, why does he have a claim?
As I understand it, after this case arose Maryland passed a statute putting time, place, and manner restrictions.
I read that statute and it seems to me that there was nothing unlawful, nothing out of compliance with that statute, that was done here.
It was at considerable distance.
There was no importuning anyone going to the funeral.
It stopped before the funeral, the service, began.
Am I right that under the current statute this conduct was not unlawful?
Mr. Summers: Justice Ginsburg, the statute wasn't in place at the time.
But there's a complicated answer to the question, because they were positioned about 30 feet from the main vehicle entrance to the church, and they rerouted the funeral procession so they were 200 to 300 feet away from--
Justice Ruth Bader Ginsburg: Didn't they stand where the police told them to?
Mr. Summers: --Well, they -- they told the police where they wanted to stand and the police said okay.
So the police didn't say, please stand here.
They said -- in fact, they sent out a flyer--
Justice Ruth Bader Ginsburg: And it was there with the knowledge of the police and with the permission of the police.
Mr. Summers: --It's true they did not violate any criminal statutes.
Justice Samuel Alito: Is there anything to suggest that the Maryland legislature, in enacting that statute, intended to occupy the field of regulations of events that occur at funerals?
Mr. Summers: I believe the Maryland legislature made it clear that they didn't want people to protest funerals in general.
Justice Ruth Bader Ginsburg: But they didn't prohibit it.
Mr. Summers: --They didn't prohibit it under certain circumstances and in a certain--
Justice Ruth Bader Ginsburg: Well, is this the case which the facts here meet.
Mr. Summers: --For statutory enforcement.
But what we are dealing with here is tort law.
Justice Antonin Scalia: That statute applies to any protest at funerals: Protesting the Vietnam War, protesting whatever.
Your case involves, at least if we accept your version of it, a protest of the dead soldier who -- who is going to hell and whose parents have raised him to go to hell.
So simply to say you can have a protest within a certain distance is not to say you can have a protest within a certain distance that defames the corpse.
That's a different issue, isn't it?
Mr. Summers: That's our position, yes, Justice Scalia.
Justice Ruth Bader Ginsburg: If you knew just what was going on, do you suppose -- because this had been done before.
In fact, wasn't this the very same day they picketed at Annapolis and at the State Capitol.
Mr. Summers: --They picketed, yes, those three locations that day.
Justice Ruth Bader Ginsburg: So they knew what the signs were going to be.
Could they have gotten an injunction, do you suppose, against this protest?
Mr. Summers: I don't think they could have beforehand because although you said we knew what the signs were going to be, generally from their pattern I think we could guess what the signs may have been, but you don't really know what the signs are going to be until they show up.
For example, in this case, they had a sign that said "priests rape boys", they had a sign that said
"God hates you, you are going to hell. "
Justice Ruth Bader Ginsburg: So you could go into court and say that the signs were this, that or the other things at the State Capitol, the same signs at Annapolis; they're going to use the same signs at this protest.
Mr. Summers: As -- Justice Ginsburg, from our perspective, the signs that said
"God hates you, you are going to hell. "
referred directly to Matthew Snyder and we would hope and believe that the district court could enjoin those types of specific targeted epithets.
If, for example, this was done at a public park in Montana, logically I think you could conclude that it wasn't directed at the family.
But when you show up at a 20-year-old marine's funeral and say "you are going to hell"--
Justice Ruth Bader Ginsburg: Did they have the "going to hell" sign at the State Capitol and Annapolis?
Mr. Summers: --They had -- the majority of the signs were the same, yes.
Justice Ruth Bader Ginsburg: Those particular ones that you mention, did they have those at the other two?
Mr. Summers: Yes.
I believe the only ones that they changed is they have a sign for each different branch of the service.
Matt was a marine, so--
Justice Ruth Bader Ginsburg: So it sounds like to you it's the whole society, the whole rotten society in their view.
Mr. Summers: --If we are forced to accept their view, yes, Justice Ginsburg, that's what they testified to.
Mr. Snyder's view, the view of the Fourth Circuit, was that these Mr. Snyder certainly interpreted that as referring to his son, because after all Matthew Snyder was the only deceased marine/soldier at the funeral.
Justice Ruth Bader Ginsburg: Where did -- you said the Fourth Circuit found that those signs targeted the family rather than the whole U.S. society?
Mr. Summers: The v. Falwell.
Justice Samuel Alito: Do you think that the epic is relevant as an explanation of some of the these arguably ambiguous signs that were displayed at the funeral?
For example, "You are going to hell", "God hates you"; who is "you"?
If you read the epic, perhaps that sheds light on who "you" is.
Mr. Summers: It can shed light, but if you put this in the context of a funeral-goer, Justice Alito, what you have is -- it was a typical funeral, family members driving in and--
Justice Samuel Alito: Well, yes, but the signs say "you" and the argument is made "you" doesn't mean Matthew Snyder; it means a larger group.
And then you have the epic, which is directed directly at Matthew Snyder.
Doesn't that show -- shed light on what "you" meant on those signs?
Mr. Summers: --Correct, and that's where I was going to go with that, Justice Alito.
The epic specifically referenced Matthew Snyder by name, specifically referenced Matthew's parents by name.
So in our judgment, and the defendants testified that the epic sort of explained, at least in their explanation, explained the funeral protest itself.
Justice Stephen G. Breyer: I'm not certain that this is about the funeral.
I mean, understand there was a funeral in it, but the First Amendment question seems to me a different, possibly a broader and different question.
Did your client see the signs?
I gather from the record he didn't see what the signs were; he just saw tops of signs.
So he didn't read anything on the signs, is that right?
Mr. Summers: He didn't read the content.
Justice Stephen G. Breyer: So he hadn't seen them.
So how does -- how did your client find out that the signs, the tops of which he saw at the funeral when the demonstrators were standing, with the approval of the police, 300 feet away, how did he find out what they said?
Mr. Summers: Your Honor, 2 days in advance they sent out a flyer announcing they were going to protest the funeral.
They had Matthew Snyder's picture there.
They claimed they were going to protest at St. John's Catholic dog kennel.
Justice Stephen G. Breyer: Did they say in -- my question is, how did your client find out these very objectionable things on the signs?
How did he find out what they said?
Mr. Summers: He found out about the specifics of the signs--
Justice Stephen G. Breyer: Yes, that's what I'm interested in.
Mr. Summers: --by going to the family wake immediately following and seeing it on the television.
Justice Stephen G. Breyer: Okay.
So now we have two questions.
One is under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious, because at the funeral you say that -- and I accept that from your point of view -- that is very obnoxious.
And the second is to what extent can they put that on the Internet, where the victim is likely to see it, either on television or by looking it up on the Internet?
Now, those are the two questions that I am very bothered about.
I don't know what the rules ought to be there.
That is, do you think that a person can put anything on the Internet?
Do you think they can put anything on television even if it attacks, say, the most private things of a private individual?
Does Maryland's -- does Maryland's law actually prohibit that?
Do we know it does, and what should the rules be there?
Have I said enough to get you talking?
Mr. Summers: Yes, Your Honor.
Right now the rule we are stuck with is Hustler v. Falwell for intentional infliction of emotional distress, and the--
Justice Ruth Bader Ginsburg: Your claim is that Hustler was a -- Falwell was a public figure and the Snyder family is not.
So I think what I got from your brief is you don't fall under that case because you are not dealing with a public figure.
Mr. Summers: --That's correct, Justice Ginsburg.
Chief Justice John G. Roberts: Okay.
Were you finished answering Justice Breyer's question?
Justice Stephen G. Breyer: The more you say about this the happier I will be, because I'm quite interested.
Mr. Summers: The private targeted nature of the speech in our judgment is what makes it unprotected.
So for example, the epithets directed at the family would be unprotected.
If, for example, a person repeatedly put on the web site that Mr. Smith has AIDS, whether it's true or not, essentially at some point in time it might rise to the level of an intentional infliction of emotional distress.
There would have to be other facts combined there.
Chief Justice John G. Roberts: So you have no objection if the sign said "Get out of Iraq", an antiwar protest, in other words not directed at this particular individual?
Mr. Summers: Correct.
I don't think--
Chief Justice John G. Roberts: So no objection there?
Mr. Summers: --I don't think there'd be any constitutional impediment to bringing -- or the Constitution would not -- would bar that claim from going forward.
Justice Sonia Sotomayor: Excuse me--
Justice Antonin Scalia: So the intrusion upon the privacy of the funeral is out of the case then, right, because that sign would intrude upon the privacy of thea funeral just as much?
That's not really what you are complaining about.
You are complaining about the personal attacks, aren't you?
Mr. Summers: Yes, Justice Scalia, and I think under a certain scenario, you could have, regardless of the signs, you could have a scenario where the funeral was disrupted and it was disrupted in this case.
Justice Ruth Bader Ginsburg: It was or it wasn't.
Mr. Summers: It was, Justice Ginsburg.
Justice Ruth Bader Ginsburg: I thought that when the service itself began the protesters stopped.
Mr. Summers: The police testified that, I think it was, about 8 minutes after the funeral started, that the protesters left the area.
Justice Sonia Sotomayor: --Were they encouraged--
Justice Antonin Scalia: I thought that they had to come in a different entrance?
Is that the extent of the disruption?
Mr. Summers: Well, according to I believe all the witnesses, yes, they had to come in--
Justice Antonin Scalia: In order to avoid the protest.
Mr. Summers: --That, and they certainly took away, according to the priest that was coordinating the mass, they certainly took away the peaceful experience that all private figures--
Justice Antonin Scalia: But you wouldn't have objected to that if there weren't these nasty signs, you just said, right?
Mr. Summers: --No.
I hope I said, Justice Scalia, that under the right context, jut the signs alone, if that's all we are saying, there's a sign out there that says "God hates America", I don't think that we could have a claim there.
But if they in fact disrupted the funeral, I do think in some set of facts there could be a claim.
Justice Antonin Scalia: All right.
Justice Sonia Sotomayor: --Counsel, I'm trying to tease out the importance of the -- whether the person's a private -- or public figure -- a private person or a public figure.
Does it make a difference if I am directing public comments to a public or private figure?
Mr. Summers: Well, in the context of defamation we had the Rosenbloom followed by the Gertz decision.
Justice Sonia Sotomayor: No, I'm talking about in terms of infliction of emotional distress.
If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America's doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?
Mr. Summers: I'd think there'd be -- have to be a lot more facts involved, harassing type of facts.
Justice Sonia Sotomayor: But you are saying yes.
So public speech, speech on a public matter, if directed to a private person, should be treated differently under the law?
I think that was part of what Justice Breyer was asking.
Is that what your position is?
Mr. Summers: --Public speech, even directed to a private figure, should be treated differently than as directed towards a public official.
Justice Sonia Sotomayor: All right.
And under what theory of the First Amendment would we do that?
What case would stand for, our case, stand for the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?
Mr. Summers: Gertz v. Welch treated the public versus private figure status different, albeit--
Justice Ruth Bader Ginsburg: That was defamation, wasn't it?
Justice Sonia Sotomayor: That was defamation.
That's false -- truth or falsity.
Mr. Summers: --Correct.
Correct, but the problem is, the only other case we have that deals with intentional infliction of emotional distress from this Court is Hustler v. Falwell, and Hustler v. Falwell clearly dealt with a public figure.
The States have interpreted Hustler v. Falwell as not applying to a private figure.
Justice Sonia Sotomayor: But have they done it in the context of differentiating between public and private speech?
Mr. Summers: Yes, there is an Illinois case that we cited in the brief where it was specifically said it was a matter of public concern, and they said the plaintiff was not a public figure; therefore the -- just, you have to meet the elements of intentional infliction of emotional distress.
Justice Sonia Sotomayor: I was not talking about State cases.
I was talking about a Supreme Court case that suggested that we would treat -- we would treat the First Amendment and the right to -- to speak on public matters differently, depending on the person to whom it was directed?
Mr. Summers: I think Gertz v. Welch says that.
Dun & Bradstreet says you have to at least look at the context of the situation.
Justice Sonia Sotomayor: So it goes -- it goes to the context.
Now, going to the context of this speech, do we look at the words on a sign alone or do we look at the entire context of what all of the other signs said at the demonstration, to determine whether or not the speech here was public or private speech?
Mr. Summers: I think you have to look at the particular signs, because if you don't, anyone could come up with a public concern, because they could direct any type of epithets at a person.
In the middle of their paragraph they could say: I'm for taxes or I'm against taxes, and therefore the entire statement would be--
Justice Sonia Sotomayor: Well, in that case--
Justice Antonin Scalia: Mr. Summers, I'm a little concerned at your apparent acceptance of -- of the proposition that if one comes up to a Marine and says, you are contributing to a -- a terribly unfair war, that that alone would -- would form the basis for the -- the tort of intentional infliction of an emotional distress.
What -- what are the requirements for that?
I thought that it had to be outrageous conduct.
Doesn't it have to be outrageous conduct?
Mr. Summers: --It does, Justice Scalia, and I wasn't suggesting--
Justice Antonin Scalia: Well, I mean -- I mean, why accept that as -- as parallel to what -- to what you are claiming here?
Mr. Summers: --And I hope I didn't.
What I meant to say, if I didn't, was there would have to be a lot more facts involved to rise to the level of an intentional infliction of emotional distress case if you just told the Marine, for example, you're not in favor of the war.
Justice Stephen G. Breyer: What about the -- taking -- if you have an instance where the defendant has said on television or on the Internet something absolutely outrageous, you showed that.
You show that it was intended to and did inflict serious emotional suffering.
You show that any reasonable person would have known that likelihood, and then the defendant says: Yes, I did that, but in a cause, in a cause.
And now -- in a cause that we are trying to demonstrate how awful the war is.
At that point I think the First Amendment might not leave this alone.
But if it's not going to leave this alone, there's where we need a rule, or we need an approach or we need something to tell us how the First Amendment in that instance will begin to -- enter and force a balancing.
Is it that you want to say no, no punitive damages in such a case?
Or that you would have to insist upon a particularly clear or a reasonable connection between the private part of this and the public effort?
Have you thought about that at all?
Because that's where I am thinking and having trouble.
Mr. Summers: The -- I think the standard should be Hustler v. Falwell generally does not apply--
Justice Stephen G. Breyer: Hustler -- Hustler v. Falwell is defamation.
Mr. Summers: --I thought Hustler v. Falwell was intentional infliction of emotional--
Justice Stephen G. Breyer: Intentional infliction, okay, good.
Justice Elena Kagan: Mr. Summers--
Justice Stephen G. Breyer: Well, answer then, please.
Mr. Summers: --I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you -- if you--
Justice Stephen G. Breyer: Compelling.
Mr. Summers: --Or at least reasonable, rational connection.
In this case they don't even claim there is a connection.
They just used this moment to hijack someone else's private event when they are grieving over a 20-year-old child's funeral.
Justice Elena Kagan: --Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this.
"Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression. "
How does that sentence -- how is that sentence less implicated, in a case about a private figure than in a case about a public figure?
Mr. Summers: Well at least in Hustler -- Justice Kagan, at least in Hustler v. Falwell we had a traditional area of public discourse.
We had a parody.
I believe the opinion went to great length to explain that.
Here what we are talking about is a private funeral.
I don't -- I would hope that the First Amendment wasn't enacted to allow people to disrupt and harass people at someone else's private funeral.
Justice Ruth Bader Ginsburg: So--
Justice Elena Kagan: But that goes back to the question that was asked previously about, suppose you had a general statute that just said, there will be no disruptions of any kind at private funerals.
You know, pick your distance, 500 feet, 1,000 feet, but something that didn't refer to content, that didn't refer to ideas, that just made it absolutely clear that people could not disrupt private funerals.
What harm would that statute not address in your case?
Mr. Summers: Well, the States have -- in the statutory case, they have the interest of penalizing the offending party.
In tort law, the State's interest is to provide a remedy for its citizens.
Under the Fourth Circuit's interpretation of these facts, Mr. Snyder has absolutely no remedy, none.
He is a private figure, a grieving father, and he is left without any remedy whatsoever.
Justice Ruth Bader Ginsburg: --We have other instances where conduct is lawful, meets all the terms of the statute that's meant to govern protests at funerals, and yet there is an award of damages permitted.
Mr. Summers: I believe that the Hustler v. Falwell was a -- had several tort claims, but there was no criminal statute violated.
I understand that it went the other way because of the public figure status, but that would be an example.
Justice Ruth Bader Ginsburg: Well, that was a -- I'm not asking you for an example where -- a Federal case where the conduct was permitted by the statute, by the policemen there, and yet there was -- was a damage award.
Mr. Summers: --Justice Ginsburg, I am not aware of any case, but I think the -- if for example someone sued someone for defamation, there probably wouldn't be a statute that was violated so I don't -- I would presume--
Justice Ruth Bader Ginsburg: I'm talking about this intentional infliction of emotional distress claim that you're bringing.
Mr. Summers: --Other than Hustler v. Falwell, I do not have any Federal cases to cite to you.
The State cases we cited in our brief--
Justice Samuel Alito: Is this the situation in which all conduct that complies with the Maryland funeral protest statute is lawful?
If the Maryland legislature said this is the -- these are the exclusive regulations that apply here, so that if someone came up to Mr. Phelps at the funeral and spat in his face, that would not be -- that wouldn't be illegal?
Mr. Summers: --Justice Alito, I don't know whether that would be criminally--
Justice Samuel Alito: Because it's not specifically prohibited by the statute.
Justice Ruth Bader Ginsburg: Well, it certainly wouldn't be because of the distance.
I mean, you would have to be a lot closer than the Maryland statute allows to spit in someone's face.
Chief Justice John G. Roberts: Perhaps you would like to answer Justice Alito's question.
Mr. Summers: --I believe that you could commit a tort and still be in compliance with the criminal code, Justice Alito.
Justice Antonin Scalia: Mr. Summers, can I ask you: Suppose I don't think you have a cause of action for invasion of privacy when these people were at this distance from the funeral.
But that was one of the causes of action submitted to the jury.
If I disagree with you on that cause of action, I suppose I would have to say there has to be a retrial now.
Mr. Summers: Of course this Court could do that, Justice Scalia.
Justice Antonin Scalia: So you have to support both causes of action here, the intentional infliction of emotional distress and the invasion of privacy, right?
Mr. Summers: Yes, Justice Scalia.
But according to the Fourth Circuit, we agree that the Respondents waived that issue by not appealing that issue.
Justice Antonin Scalia: Waived what issue?
Mr. Summers: The invasion -- or elements of the invasion of privacy.
They didn't contest that we met the elements of the tort.
They -- they contested the constitutional issue, but not whether or not we met the elements of the tort.
Justice Antonin Scalia: Oh, all right.
Mr. Summers: I'd like to reserve the remainder.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF MARGIE J. PHELPS ON BEHALF OF THE RESPONDENTS
Ms Phelps: Mr. Chief Justice, and may it please the Court:
When members of the Westboro Baptist Church entered an ongoing, extensive, public discussion and wide array of expressive activities taking place in direct connection with the deaths and funerals of soldiers killed in Iraq and Afghanistan, they did so with great circumspection and they did so with an awareness of the boundaries that have been set by the precedents of this Court.
Justice Elena Kagan: Ms. Phelps, suppose -- suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day.
Does that person not have a claim for intentional infliction of emotional distress?
Ms Phelps: Any non-speech activity like stalking, following, importuning, being confrontational, could indeed give rise to a cause of action.
Justice Elena Kagan: Demonstrations outside the person's home, outside the person's workplace, outside the person's church -- demonstrations, not disruptions, but saying these kinds of things: You are a war criminal, you -- what -- would -- whatever these signs say or worse?
Ms Phelps: My answer, Justice Kagan, is: No, I don't believe that that person should have a cause of action or would under your cases have a cause of action.
You couldn't give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case.
Justice Antonin Scalia: My goodness.
We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.
Ms Phelps: We agree that fighting words are less protected under the First Amendment.
Justice Antonin Scalia: Unprotected.
Ms Phelps: I will go with unprotected, Justice Scalia.
And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social--
Justice Antonin Scalia: Is that so?
Do we know that?
Ms Phelps: --I beg your pardon?
Justice Antonin Scalia: Do we know that?
Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight?
Certainly not that.
Is it a requirement that there be a potential for a fight?
I doubt it.
Where -- where do you get the notion that it has -- that there has to be an imminent fight?
Ms Phelps: I get the notion from the series of cases starting within 7 years after your Chaplinsky case with the Gooding case and on down through the Brandenburg case and on down--
Justice Antonin Scalia: Which say what?
Ms Phelps: --That say that--
Justice Antonin Scalia: The person was too remote?
The fight was not -- was not imminent?
Ms Phelps: --The -- the definition, the working definition of "fighting words", is that they have to be words which by their nature are likely to incite an immediate breach of the peace and not occur in the context of some social, artistic, educational, or political kind of speech.
And if I may hasten to add, Justice Scalia, these Respondents were not charged with fighting words.
The jury was not instructed to limit themselves to fighting words.
No element of the tort under which liability attached included fighting words.
The words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues that the discussion was underway in this nation about dying soldiers, about the morals of the nation--
Justice Ruth Bader Ginsburg: Ms. Phelps, there is no question that these signs and the signs like that we saw during the Vietnam War.
But you had the demonstration at the capitol, and you had the demonstration at Annapolis.
This is a case about exploiting a private family's grief and the question is: Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for getting -- getting across your message, the very same day you did?
Ms Phelps: --Right.
So several pieces to that, Justice Ginsburg.
When I hear the language "exploiting the bereavement", I look for: What is the principle of law that comes from this Court?
And the principle of law, as I understand it, is without regard to viewpoint, there are some limits on what public places you can go to, to deliver words as part of a public debate.
If you stay within those bounds -- and under these torts even, this notion of exploiting, it has no definition in a principle of law that would guide people as to when they could or could not.
And if I may--
Justice Samuel Alito: Is it your -- is it your argument that the First Amendment never allows a claim for the intentional infliction of emotional distress based on speech unless the speech is such that it can be proven to be false or true?
Ms Phelps: --In--
Justice Samuel Alito: Is that your argument?
Ms Phelps: --With a -- yes, Justice Alito, and with a little bit more from your cases, if I may: And not under an inherently subjective standard, and where you're only claiming that the impact of the speech was adverse emotional impact.
Justice Samuel Alito: All right.
Well, Justice Kagan gave you one example.
Let me give you another example along the same lines.
Let's say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED.
And she goes to visit her son's -- her grandson's grave, and she's waiting to take a bus back to her home.
And while she's at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do?
Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it.
And on and on.
Now, is that protected by the First Amendment?
There is no false statement involved and it's purely speech.
Ms Phelps: Right.
And -- and it may give rise to some fighting words claim, depending on the proximity and the context.
And I would have to know what--
Justice Samuel Alito: Well, it's an elderly person.
She's really probably not in -- in a position to punch this person in the nose.
Justice Antonin Scalia: And she's a Quaker, too.
Ms Phelps: --Yes.
Let us assume that the grandmother had not done what Mr. Snyder did in this case.
Mr. Snyder from the moment he learned of his son's death went to the public airways multiple times in the days immediately before and immediately after--
Justice Antonin Scalia: Do you think that everybody--
Chief Justice John G. Roberts: What is your answer to Justice Alito's question?
Do you think the First Amendment would bar that cause of action or not?
Ms Phelps: --There would have to be a very narrow circumstance where it didn't, Mr. Chief Justice.
That's my answer.
Chief Justice John G. Roberts: So you think there are situations where a tort of intentional infliction of emotional distress is allowed, even for a matter of public debate?
Ms Phelps: Not public debate, Mr. Chief Justice.
That is not the way I understood the hypothetical he posed me.
Chief Justice John G. Roberts: Well, I understood the hypothetical, that the person disagreed with the war in Iraq and the sending of American troops there.
Ms Phelps: Right, and knew that this elderly woman was the grandmother of a soldier.
And I would ask the question in the hypothetical, how they knew, which is why I was making reference to what Mr. Snyder did.
Chief Justice John G. Roberts: The person selects the grandmother because he thinks that will give maximum publicity to his views.
Now, is -- does the First Amendment bar that cause of action or not?
Ms Phelps: If the grandmother entered the public discussion, the First Amendment bars it.
Chief Justice John G. Roberts: Well, no -- Justice -- Justice Alito posed, the grandmother was returning from the grave of her grandson.
She didn't enter the public discussion at all.
So I'm anxious to determine whether in those circumstances you think the First Amendment allows that cause of action or not.
Ms Phelps: I am reluctant to say that it does not, Mr. Chief Justice.
Justice Ruth Bader Ginsburg: But you gave the answer before about -- you said stalking.
Ms Phelps: --Right.
Justice Ruth Bader Ginsburg: Isn't this comparable to stalking?
Ms Phelps: And that's what I was trying to liken it to, and that's what it sounds more like to me.
Chief Justice John G. Roberts: Do you think it satisfies the normal tort or law against stalking for someone to come up to an individual and engage in discussion?
I thought a lot more was required.
Ms Phelps: Well, Mr. Chief Justice, I would not file that claim for that person, for that elderly grandmother.
I am not prepared, without knowing more, to say absolutely there could be no cause of action.
What I am prepared to say is there was absolutely much more than that in this case.
Justice Samuel Alito: Well, if there -- if that -- there is a possibility there is a claim there, then what distinguishes that from this case?
Now, I thought you were beginning to say that my hypothetical is different because Mr. Snyder made his son into a public figure; and the question I wanted to ask in that connection is whether every bereaved family member who provides information to a local newspaper for an obituary thereby makes the deceased person a public figure?
Ms Phelps: Not the deceased person, Justice Alito.
We don't allege that the young man dead was a public figure.
Justice Samuel Alito: But if the grandmother called up the local paper and said, let me tell you something about my grandson--
Ms Phelps: --Yes.
Justice Samuel Alito: --who was just killed in Iraq.
You know, he liked football and camping.
Ms Phelps: Right.
Justice Samuel Alito: That makes him -- that makes her a public figure?
Ms Phelps: It's getting closer.
And Justice Alito, if she went on then to say, and how many more parents like me and my ex-wife are going to have to suffer this way and when will this senseless war end, and I've gotten Congressman Murtha on the phone and talked about this situation, and I'm against the war, and then proceeded to repeat that question in the public airwaves repeatedly, then a little church where the servants of God are found say, we have an answer to your question that you put in the public airwaves and our answer is you have got to stop sinning if you want this trauma to stop happening--
Chief Justice John G. Roberts: Your response -- your response to Justice Alito is dwelling on the facts of this particular case.
Ms Phelps: --Yes, sir.
Chief Justice John G. Roberts: I'm interested in knowing what your position is on the broader question.
Can you imagine a circumstance where this same type of discussion is directed at an individual and yet would give rise to the tort of emotional distress?
Ms Phelps: Yes, I can imagine, Mr. Chief Justice.
Chief Justice John G. Roberts: I'm sorry, can or cannot?
Ms Phelps: I can.
Chief Justice John G. Roberts: You can.
Ms Phelps: I can imagine that there could be a circumstance, a hypothetical, where there was not this level of involvement, and it was out of the blue and it was up close, if I may use the term, confrontational.
Chief Justice John G. Roberts: Okay.
So if you recognize that there can be a tort of emotional distress in circumstances like that, isn't that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?
Ms Phelps: I don't agree with that, Mr. Chief Justice, because you have now taken an inherently subjective standard with the absence of any of these non-speech misbehaviors.
And now you are back to only -- the only barrier between a person and their First Amendment right to robust public debate, including this Court has said, outrageous statements--
Chief Justice John G. Roberts: Does it make -- I'm sorry.
Ms Phelps: --with just that subjectively inherent standard, and that subjective statement of emotional impact.
This Court has said repeatedly--
Chief Justice John G. Roberts: Does it make a--
Ms Phelps: --we won't let that go.
Chief Justice John G. Roberts: --Does it make a difference, which seems to me to be the case here, that Mr. Snyder was selected not because of who he was, but because it was a way to get maximum publicity for your client's particular message?
Ms Phelps: That is not accurate, Mr. Chief Justice, with due respect.
Chief Justice John G. Roberts: Well, assuming it is accurate, does that make a difference?
Ms Phelps: The motive of the speaker to get maximum exposure, which every public speaker pines for, looks for, strives for, and is entitled to -- does not change the legal principle that's at play.
Chief Justice John G. Roberts: Well, it might affect whether or not the selection inflicts emotional distress for a reason unconnected with the individual who is the subject of the emotional distress.
Ms Phelps: Well, if--
Chief Justice John G. Roberts: In other words, if the person is selected because, as I indicated, it gives maximum publicity, rather than because of a particular connection to the matter of public debate, I wonder if that makes a difference.
Ms Phelps: --I think it makes a difference when you are looking at what role the plaintiff had in that public discussion and how tied the words that they seek to punish are to his role in that public discussion.
I think that's how you get to the point--
Justice Elena Kagan: Well, Ms. Phelps, let's say that we disagree with you as to whether Mr. Snyder had at all injected himself into this controversy.
Or let's take a case where it's clear that the father of the fallen soldier had not injected himself, had not called any newspapers, had not said anything to anybody, but a group knew that this funeral was taking place, and was there with the same signs, with the same -- are you -- are you saying that that makes the difference?
That there, there would be a claim?
Ms Phelps: --I'm saying it does make a difference, and no -- but no, there would not be a claim there in my opinion because--
Justice Elena Kagan: So it's not a difference that matters.
Ms Phelps: --It is a difference that matters in some measure, I believe, Justice Kagan, in this light.
I believe that the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues.
Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues.
Now, when a plaintiff comes to your Court and says, I want $11 million from a little church because they came forth with some preaching I didn't like, I think it does make a difference for the Court to look closely at what role did that man have in that public discussion.
Justice Samuel Alito: But your argument depends on the proposition that this is speech on a matter of public concern, is that correct?
Ms Phelps: Absolutely, Justice Alito.
Justice Samuel Alito: So let me -- let me give you this example.
Suppose someone believes that African Americans are inferior, they are inherently inferior, and they are really a bad influence on this country.
And so a person comes up to an African-American and starts berating that person with racial hatred.
Now is that in -- this is just any old person on -- any old African-American on the street.
That's a matter of public concern?
Ms Phelps: I think the issue of race is a matter of public concern.
I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.
Justice Anthony Kennedy: But that's simply--
Justice Antonin Scalia: --Excuse me--
Justice Anthony Kennedy: --That simply points out that all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young.
Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact -- the Justice Alito hypothetical in -- in -- in the grandmother case.
So I -- I think -- I think your -- your public concern issue may -- may not be a limiting factor in cases where there is an outrageous conduct and where there should be a tort.
Ms Phelps: Well, but again, this Court has given substantial, longstanding protection to speech on public issues, and how could it be gainsaid that the dying soldiers is not on the lips of everyone in this country?
And it is a matter of great public interest and why they are dying, and how God is dealing with this nation.
Were you to consult the Joint Appendix and see that at the very same funeral, right outside the front door of the church, were people with flags and signs articulating the "God bless America" viewpoint, and so this little church--
Justice Anthony Kennedy: But your position is you can take this and you can follow any citizen around at any point?
That -- that was the thrust of the questions from Justice Kagan.
Ms Phelps: --Not follow--
Justice Anthony Kennedy: And -- and Justice Alito, and it seems to me that there -- you should help us in finding some line there.
Ms Phelps: --Yes, I will help you, Justice Kennedy and I am pleased to do that.
Because we don't do follow-around in this church.
We were 1,000 feet away, 7 picketers, 1,000 feet away, out of sight, out of sound, not just standing where the police said to stand--
Justice Anthony Kennedy: But in the -- but the hypotheticals point out that there can be an intentional infliction of emotional distress action for certain harassing conduct.
Ms Phelps: --For harassing conduct, not for speech.
Not for public speech, Justice Kennedy.
Justice Anthony Kennedy: But torts and crimes are committed with words all the time.
Ms Phelps: I agree with that.
And there has never been any allegation in this case that the words of the Westboro Baptist Church were in any category of low-value or less protected speech.
Justice Antonin Scalia: --Let's talk about subjectively.
You're concerned about -- surely fighting words is -- you know, whether something is a fighting word, that is a very subjective call, isn't it?
Ms Phelps: I believe that your cases give some good light on that, Justice Scalia.
Justice Antonin Scalia: You don't think it's subjective?
Ms Phelps: There may be in some people's mind an element of subjectivity.
My 20 years--
Justice Antonin Scalia: You think that's solid, absolutely, what's a fighting word, whereas what is an outrageous statement is very much different from what's a fighting word?
I don't see the difference.
Besides which, isn't it the case that in order to recover for the tort of intentional infliction of emotional injury, you have to substantiate the injury with some physical manifestation, which the plaintiff here had?
And my goodness, for fighting words, you don't even need that.
You can just say, these words angered me to the degree that I would have been inclined to fight.
At least for this tort, you have to have physical manifestations.
Why isn't that a very objective standard?
Ms Phelps: --Well, because the Court said it was inherently subjective in the Falwell case.
And I think that the language that Justice Kagan brought forth, and there's a few more paragraphs that follow, identify why it's inherently subjective.
And the way this case was tried identifies why it was inherently subjective, where although two signs and then three were identified as actionable by a strange reading of those words, all of the preachments of Westboro Baptist Church, including all of the signs at that picket, all of the other signs at other pickets, and all their doctrines, went to a jury with that inherent--
Justice Antonin Scalia: So your point depends -- depends upon the proposition that what is outrageous is more subjective than what is fighting words?
Ms Phelps: --Well, Justice Scalia, I must hasten to say this: I am not a fan of the fighting words doctrine.
I do think it has problems.
I just don't think it applies in this case.
Justice Ruth Bader Ginsburg: The Court has made that a very narrow category, hasn't it?
I mean, we have not allowed the fighting words -- you say that to me and I'm immediately going to punch you in the nose, because it is an instinctive reaction.
I think the Court has rejected spreading fighting words beyond that.
Ms Phelps: And especially not to where there's just emotional injury.
That's where I particularly think, although Chaplinsky would have suggested in some broad language you would go that way, you have not gone that way in any of the cases.
And again, I have to reiterate, you have required immediacy and intent.
Whether a fight ensues or not, I do understand that hasn't been pinned down as a requirement.
But in intent, it's your purpose, is to mix it up with somebody, not to go out and say: Nation, hear this little church.
If you want them to stop dying, stop sinning.
That's the only purpose of this little church.
1,000 feet away could not possibly be fighting words.
Justice Stephen G. Breyer: We are still so worried about the statements on television and on the internet and the knowledge there.
And I'm not -- I'm still starting -- and I am trying to get the same answer from you I was trying to get from your colleague.
Brandeis said the right to be let alone was the most important, and so he must have been thinking there could be a tort there for interference with privacy, and the First Amendment doesn't stop State tort laws in appropriate circumstances.
Ms Phelps: Right.
Justice Stephen G. Breyer: And emotional injury, deliberately inflicted, could be one.
Now, and I think it is one, but I see that in some instances that could be abused to prevent somebody from getting out a public message, and therefore, I'm looking for a line.
Now, let me suggest a couple and see what you think, and maybe you can think of some others.
You could have a judge make the decision, since the First Amendment is involved, not the jury, and the judge could say whether in this instance it was reasonable for the defendant to think that it was important to interfere with the emotional life of that individual.
You could say if that was so, there will still be no -- there would be no punitive damages.
There could be ordinary damages.
You could remove all protection from the defendant in an instance where the defendant nonetheless knew, actually knew, that they were going to cause an individual who's private severe injury, emotional injury, irrespective of their public message.
So what I'm doing is suggesting a number of thoughts of ways of trying to do 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.
Now, maybe this is impossible, this task.
But I would like your thoughts on it.
Ms Phelps: Thank you, Justice Breyer.
And I'm taking that we are speaking now of the intrusion claim, and I believe that I could offer you a compare and contrast, two extremes that may help us here.
On the one hand, you have a body of law that comes under the heading of captive audience.
And you can go into that body of law and read all those cases in one sitting, so to speak, from which you would conclude that it is very narrow, it is very limited, and there must be some actual physical sound, sight, intrusion, if you are talking about invasion of privacy.
At the other extreme, for a compare and contrast, is what they seek in this case, what the trial judge gave them in this case, which is: In an unspecified period of time that each individual will call their mourning period, no one, at any time, any place, any manner, may say any word that that mourner says caused me emotional distress.
That would chill too much speech.
Justice Samuel Alito: Why aren't the members of the family -- why aren't the members of the family of the deceased a captive audience at the funeral?
Ms Phelps: If we were right outside the door like the other expressers were in these exhibits, they might have been.
Your body of law about captive audience, when you -- Hill v. Colorado, Madison, Schenck.
That line of cases recently, taking the picketing -- where they, by the way, specifically said at footnote 25 this isn't about content.
You've got to be up -- again, I will uses the colloquial term -- up in your grill.
The term I think the Court used was confrontational.
Now, you can't be a captive audience with -- to someone that you couldn't see when the test is--
Justice Samuel Alito: I thought the targeted picketing of a person's house is not protected by the First Amendment.
Ms Phelps: --Focused picketing, per Frisby, directly in front of can be regulated.
And even in Frisby, the Court--
Justice Samuel Alito: What's the difference between that and picketing around the site of the funeral?
Ms Phelps: --Proximity, Justice Alito.
Because the captive audience doctrine, as fleshed out in those abortion picketing cases, what you were looking at was: Is it practical for the person to avoid it without having to run a gauntlet?
That's why you said images observable, the only objection you can have there is content.
Get up and close the blinds.
Justice Samuel Alito: So it doesn't have to do with whether this is a -- what you characterize as a public funeral as opposed to a private funeral?
That is not the distinction you are relying upon any longer?
Ms Phelps: Not primarily.
I am primarily relying upon proximity.
I do think that you could have a public event where there was not an element of vulnerability in the people going in.
You might even let them up in their grill.
I don't know for sure, but we don't have to worry about that.
Justice Sonia Sotomayor: Counsel, I am following your argument that the bulk of your speech in the epic, and even the bulk of your signs, involve public speech.
What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter.
Because you are talking about them raising Matthew for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.
At what point and how do we take personal attacks and permit those, as opposed to -- I fully accept you're entitled in some circumstances to speak about any political issue you want.
But what's the line between doing that and then personalizing it and creating hardship to an individual?
Ms Phelps: Right.
I believe, Justice Sotomayor, that the line is where it was in this case: Where the father used the occasion of the son's death to put a question out in the public airwaves repeatedly.
Justice Sonia Sotomayor: So if we disagree that that made him a public figure, if we view him as a private figure, is that enough to defeat your argument?
Ms Phelps: No, Justice Sotomayor.
Justice Sonia Sotomayor: Assume that the Matthews are private figures and you did this.
So explain to me how you are protected by the First Amendment.
Ms Phelps: If without regard to what label is put on a person who steps into the public discussion.
Justice Sonia Sotomayor: You want to change my assumption.
Ms Phelps: Okay.
Justice Sonia Sotomayor: We assume that he is a private figure.
You have now made a public statement and directed personal comments at an individual who is a private figure.
Is that actionable?
Ms Phelps: Well, I don't know, Justice Sotomayor.
I don't know that I can give you a definitive answer as you have framed it.
What I can tell you is that I think the Court would have great difficulty making a rule of law that whether you call yourself private, public, limited, whatever, you -- not the person you're mad at over their words -- but you step into the public discussion and make some public statements, and then somebody wants to answer you.
Chief Justice John G. Roberts: Well, so that what if -- did Mr. Snyder, the father, become a public figure simply because his son was killed in Iraq?
Ms Phelps: No, Mr. Chief Justice.
Chief Justice John G. Roberts: Okay.
Ms Phelps: --I don't allege that here.
Chief Justice John G. Roberts: So if he didn't take out -- if he didn't take out the usual obituary notice, then this case should come out the other way?
Ms Phelps: It's not the obituary notice, Mr. Chief Justice, he went far beyond that.
Chief Justice John G. Roberts: All right.
Well, let's just say he does nothing.
He does nothing other than bury his son.
Ms Phelps: Right.
Chief Justice John G. Roberts: He is then not a public figure?
Ms Phelps: If he does nothing we don't picket him.
And I don't know--
Chief Justice John G. Roberts: Well, that's because if he does nothing and it's not publicized, you don't get the maximum publicity that your clients are looking for.
My question is, if he simply buries his son, is he a public figure open to this protest, or -- or not?
Ms Phelps: --I don't know in the context of a war, if I can give a definitive answer to that.
It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated.
For two years this church--
Justice Samuel Alito: What if a parent is called after the -- puts in the obituary information and called by the local newspaper and asked for a comment, and he says or she says, I'm proud of my son because he died in the service of our country.
Does that -- is he stepping into a public debate by doing that?
Ms Phelps: --How -- by however you call it Justice Alito, a church or anybody has the right to answer that public comment; that is our position.
Chief Justice John G. Roberts: Thank you, Ms. Phelps.
Ms Phelps: Thank you.
Chief Justice John G. Roberts: Mr. Summers, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF SEAN E. SUMMERS ON BEHALF OF THE PETITIONER
Mr. Summers: Thank you, Mr. Chief Justice.
Justice Elena Kagan: Mr. Summers, could I ask you to go back to an answer that you gave to one of my colleagues when you were last up there?
You said that a -- a more standard antiwar demonstration, "get out of Iraq", "war is immoral", at this funeral, same distance, same sized signs -- that a more standard antiwar demonstration would be protected by the First Amendment from an intentional infliction of emotional distress suit.
And I'm wondering why that is.
If you think that what is -- what causes the lack of protection here is the kind of glomming to a private funeral, the exploitation of a private person's grief, the -- the appearance for no other reason than to gain publicity at a private event -- if that's the problem, why doesn't it also apply to a standard, you know, "get out of Iraq", "war is wrong", kind of demonstration?
Mr. Summers: Justice Kagan, I say that is a -- one, it's a much closer call, and two, I would look to the facts of the case to see if the funeral itself was disrupted.
But that isn't the facts of our case.
The facts of our case was one, that it was disrupted and two, that it's personal, targeted assaults on Mr. Snyder.
Justice Elena Kagan: Well, suppose it is not disrupted and suppose -- and I know you that this is, that contest these facts -- that yours wasn't disrupted, that they stopped when you started, that they were a sufficient number of feet away from the funeral and so forth.
So we are just talking the fact that there are people who have -- who are appropriating and taking advantage of a private funeral in order to express their views, and they are in compliance with all of the content-neutral rules.
Mr. Summers: I would say that's a much closer call and not the--
Justice Elena Kagan: But why is it a closer call?
Mr. Summers: --It's a closer call because it's not a personal, targeted nature of the attack on the Snyder family that we have in this case.
Justice Elena Kagan: So does that mean that now we have to start reading each sign, and saying "war is wrong" falls on one side of the line but "you are a war criminal" falls on another side of the line?
Is that what we would have to do?
Mr. Summers: I think that, generally speaking, yes, Justice Kagan.
The court -- the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not.
There was a comment earlier that all the signs were presented.
Well, all the signs were presented by the Respondents, not by Mr. Snyder.
Justice Antonin Scalia: I guess that that kind of a call is always necessary under -- under the tort that you're -- that you're relying upon.
The conduct has to be outrageous, right?
Mr. Summers: --Correct.
Justice Antonin Scalia: That always requires that kind of a call, unless the tort is unconstitutional, as applied to all -- all harm inflicted by words.
Mr. Summers: Correct, Justice Scalia, the element of intentional infliction of emotional distress requires outrageousness.
Justice Elena Kagan: Well, that's true, but I was assuming a situation in which a jury found that the war was wrong, that a jury did find that outrageous; and the question was were we going to reverse the jury verdict because we -- the First Amendment prohibited it?
Mr. Summers: Again, I believe that's a closer call and I would say yes, if it's a general statement, does not disrupt the funeral, does not target the family, I would say that it's one, a much closer call, and yes, it's more likely that the Constitution is going to prevent that claim from going forward.
The -- I'd say--
Chief Justice John G. Roberts: Thank you, Mr. Summers.
The case is submitted.
Justice John G. Roberts, Jr.: The members of the Westboro Baptist Church believed that God hates and punishes the United States for among other things it's tolerance of homosexuality, particularly in America's military.
The church has chosen to communicate these views by picketing at military funerals and has frequently done so for the past 20 years.
Fred Phelps who founded the Church and six Westboro Baptist parishioners, all of them happen to be related to Phelps, traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty.
The picketing took place on public land approximately 1000 feet from the Catholic Church where the funeral was held.
The signs carried by the parishioners stated, for example, Thank God for Dead Soldiers, Fags Doom Nations, Thank God for 9/11, America is Doomed, Hope in Hell and God Hates You.
The picketers displayed their signs for about 30 minutes before the funeral began.
Matthew Snyder's father, the petitioner here, saw the tops of the particular -- particular picketer signs when driving to the funeral but did not learn what was written on the signs until watching a news broadcast later that night.
Mr. Snyder sued Phelps, two of his daughters who had participated in the picketing and the Westboro Baptist Church for intentional infliction of emotional distress, a tort under state law.
A jury held Westboro liable for $7 million in compensatory and punitive damages.
Westboro challenged the verdict on the ground that the First Amendment fully protected its speech.
The Court of Appeals for the Fourth Circuit agreed with Westboro and we granted certiorari.
The Free Speech Clause of the First Amendment can serve as a defense in state court suits including suits for intentional infliction of emotional distress.
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is a public or private concern.
We have explained in our prior cases that speech on public issues, "is more than self-expression, it is the essence of self-government”, and is therefore entitled to special protection.
As we have also explained in our prior cases speech on matters of private concern is different.
In such a case, “There is no threat to the free and robust debate of political issues and there is no potential interference with the meaningful dialogue of ideas.”
Deciding whether a speech is a public or private concerns requires us to examine all of the circumstances surrounding the speech, what was said, where it was said and how it was said.
The content of Westboro's signs plainly relates to broad issues of interest to society at large.
Well the church's messages may fall short of refined social or political commentary the issues they highlight, the political and moral conduct of United States and its citizens, the faith of our nation, homosexuality in the military and scandals involving the catholic clergy are matters of public import.
Even if a few of Westboro signs were viewed as containing messages related to Matthew Snyder or the Snyder's specifically, that would not change the fact that the overall thrust and dominant theme of the church's demonstration spoke to broader public issues.
Westboro conveyed its views on these matters of public concern by picketing at a public place adjacent to a public street.
Such space has historically occupied a favored position in terms of First Amendment protection.
As we have explained in our prior cases, “Time out of mind, public streets and sidewalks have been used for public assembly and debate.”
Westboro conducted its picketing peacefully.
It alerted local authorities to its plan protest and fully complied with police guidance on where the picketing could be staged.
The picketing was conducted under police supervisions, some 1000 feet from the church out of the sight of those at the church.
The protest was not unruly.
There was no shouting, profanity or violence.
The church's decision to conduct its demonstration in conjunction with Matthew Snyder's funeral made the expression of Westboro's views particularly hurtful to many, especially to Matthew's father.
The record makes clear that the applicable legal term "emotional distress" fails to capture fully the anguished Westboro's choice added to Mr. Snyder's already in calculable brief.
And of course, Westboro chose the time and place for it's picketing to increase publicity for its views as it has for 20 years.
But that does not change the fact that the church was engaged in peaceful picketing, addressing matters of public concern on a public street.
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on the finding that Westboro's conduct was “outrageous.”
But in the case such as this, there is a real danger that a jury would punish Westboro simply because the jury disagreed with Westboro's controversial but peacefully expressed views on matters of public concern.
As we have made clear in our precedents, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.
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.
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 address matters of public import on public property in a peaceful manner and 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 it's picketing at that time and place did not alter the nature of its speech.
Speech is powerful.
It can stir people to action, move into 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 like 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.
The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.
Justice Breyer has filed a concurring opinion.
Justice Alito has filed a dissenting opinion.