Does the First Amendment Protect Highly Offensive Speech at a Funeral and Directed at the Deceased?

By MICHAEL C. DORF
Monday, Nov. 05, 2007

Last week, a federal jury in Maryland ordered the Westboro Baptist Church, its leader Fred Phelps, and several other church members, to pay $10.9 million in compensatory and punitive damages to Albert Snyder, the father of a Marine who was killed in Iraq. Snyder sued after the defendants displayed extremely offensive signs near the site of his son's funeral, and posted defamatory messages about him on their website.

Nearly everyone in the United States--regardless of their religious views or their views about the war in Iraq--can come together in reviling the defendants' message. The Westboro Baptists believe that God is punishing America for tolerating homosexuality by killing our troops fighting overseas. Thus, the defendants have traveled around the country with signs like the ones they displayed near the site of Matt Snyder's funeral: "Thank God for Dead Soldiers" and "God Hates Fags."

The defendants claim that the civil verdict against them violates their First
Amendment rights and have vowed to appeal. In this column, I will assess the merits of their First Amendment argument. I conclude that efforts to restrict protesters at funerals survive constitutional scrutiny, and thus that the recent verdict may well pass muster under constitutional review.

The First Amendment Limits on Express Prohibitions of Funeral Protests

Since the offensive activities of the Westboro Baptists became widely known, legislatures around the country have acted quickly to forbid picketing of funerals. Indiana Congressman Steve Buyer captured the sentiment no doubt felt by many Americans when he said of the Westboro Baptists last year: "They have a right to freedom of speech. But someone also has a right to bury a loved one in peace."

Under the Supreme Court's precedents, laws that restrict the time, place or manner of speech will be upheld, so long as they do not single out messages based on their content and leave open ample alternative means of communication. The laws thus far enacted and proposed by various state legislatures vary in their precise wording, but they share characteristic features that probably ensures that they will pass this test.

By restricting the times when protesters can appear near funerals and requiring protesters to stay back 100 feet (or some other distance), laws of the sort recently enacted fall broadly within the time, place or manner rubric. Because they apply only at funeral sites, they leave open numerous opportunities for people to espouse any message they wish concerning subjects such as those on which the Westboro Baptists wanted to speak: homosexuality or the reasons for American casualties in Iraq. And because the new laws do not single out any particular message--applying equally to all protests at funerals--they can fairly be deemed content-neutral.

To be sure, one could argue that by singling out funeral protests, as opposed to speech supportive of mourners, the new state laws are content-based. For example, the Oklahoma statute creates a misdemeanor, punishable by up to thirty days in jail. to picket a funeral, defining picketing as follows: "protest activities engaged in by a person or persons within five hundred (500) feet of a cemetery, mortuary or church within one hour prior to, during and two (2) hours following the commencement of a funeral."

The Targeted Picketing Precedent

Yet operative Supreme Court precedent suggests that targeting protest in this way does not convert an otherwise valid time, place, or manner restriction into content-based censorship. In the 1988 case of Frisby v. Schultz, the Justices upheld a Wisconsin ordinance that forbade stationary picketing in front of a residence. Notwithstanding the law's application to picketing alone, the Court had no difficulty concluding that it was content-neutral.

That conclusion stands to reason, given the nature of the underlying interests that the government seeks to protect by enacting laws like the one at issue in Frisby and those that target funeral protests. Such laws protect interests in peace and privacy that could be disturbed by noisy shows of support, but that are at much greater risk from hostile audiences. (For instance, noisy shows of support are likely to be easily quieted in response to polite requests, whereas polite requests that protesters stay quiet may be ineffective or even cause protesters to turn up the volume of their shouts.) To the extent that these laws protect unwilling listeners against unwanted messages, they necessarily apply only to protests.

The Court in Frisby referred to "the unique nature of the home," invoking earlier cases that had characterized the home as "the last citadel of the tired, the weary, and the sick" and "the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits." Therefore, one might legitimately worry that extending the captive audience rationale of Frisby to places other than the home would set a dangerous precedent. If the home is not unique, then speech could be regulated to protect captive audiences at work, in public buildings and on public transportation. Accordingly, there may be sound reasons to treat Frisby as establishing a principle applicable to homes alone.

The Abortion Protester Cases

Nonetheless, the Court has already extended the captive audience theory of Frisby to one context beyond the home. In a series of relatively recent cases, the Supreme Court upheld regulations of protests outside the entrances to medical facilities where abortions were performed. In so doing, the Court specifically relied on Frisby.

Still, one might think that the abortion protest decisions were justified by the fear that protests at clinics could turn violent, and indeed that fear was at work. But the Court also credited the notion that unwanted messages directed at women seeking abortions (and other patients who happened to be entering the same healthcare facilities) could be especially damaging in themselves. As Justice Stevens wrote for a 6-3 majority in the 2000 case of Hill v. Colorado, the state may legitimately pursue an interest in "the avoidance of potential trauma to patients associated with confrontational protests." More broadly, both Hill and another case upholding a restriction on anti-abortion protesting, the 1994 ruling in Madsen v. Women's Health Center, accepted the idea that an unwilling listener can receive protection against unwanted messages in context in which he or she has no effective capacity simply to avoid the message.

Judged by that standard, it seems clear that the restrictions on protests at funerals should pass constitutional muster. Mourners at funerals are a classic "captive audience" in the sense that foregoing the opportunity to attend the funeral of a departed family member or friend is an unacceptably high price to pay to avoid unwanted messages. Moreover, the feelings of grief that naturally accompany a funeral make attendees especially vulnerable to the impact of offensive speech. For these reasons, the courts would likely sustain the new laws regulating funeral protests.

How the Snyder Case Differs

The Snyder case was not, however, a criminal prosecution brought under one of the new funeral protest laws. It was a civil action for damages, in which Mr. Snyder brought state law claims for invasion of privacy, intentional infliction of emotional distress, and defamation. Notably, some of the evidence against the defendants concerned statements on websites they operated.

Permitting recovery for the claims arising out of the defendants' websites cannot fall under the captive audience rationale, but it probably does not need to. Defamation law has long co-existed with the First Amendment. In the landmark 1964 case of New York Times v. Sullivan, the Supreme Court held that the First Amendment limits the circumstances under which states may permit plaintiffs to recover for defamation, and in the 1988 case of Hustler v. Falwell, the Court extended those limits to cover claims for intentional infliction of emotional distress.

The core principle of the line of cases traceable to New York Times v. Sullivan holds that public officials and public figures cannot recover for defamation simply by showing an injury to reputation resulting from a false statement; such a plaintiff must also show that the defendant acted with reckless disregard for the truth. However, when the plaintiff is not a public official or public figure, ordinary state law defamation rules (which often apply a negligence, not a reckless disregard standard) apply. And despite the efforts by the Westboro Baptist defendants to portray Matt and Albert Snyder as public figures, they pretty clearly were not--at least not until they were targeted for protest by the defendants.

Did the Westboro Baptists Cross the Line?

In their representations to the court and their statements since the verdict, the defendants have argued that they cannot be held liable for their protest activities because they were 1,000 feet away from the funeral itself and did not in fact disrupt the ceremony. Mr. Snyder counters, however, that as a result of the defendants' presence in the vicinity, news media and others transformed the nature of the service from a largely private family matter into a "circus." The defendants, in turn, contend that the Snyder family opened the funeral to the public and that, in any event, the verdict simply reflects hostility to their message rather than an assessment of any harm they caused.

To the extent that the Westboro Baptists now contend that the jury misinterpreted the evidence in finding that they had a noticeable and adverse impact on the mourners, they will likely lose on appeal. Jury determinations of questions of fact receive substantial deference by reviewing courts.

But to the extent that the defendants make a pure First Amendment argument, they raise a question that existing precedents do not fully answer: What is the maximum distance from a funeral beyond which the imposition of civil liability for various torts arising out of protest activities may be imposed, consistent with the First Amendment?

In addressing laws that require protesters to keep their distance in the abortion context and elsewhere, the Supreme Court has not specified a magic number of feet, generally treating the distances chosen by legislatures as presumptively reasonable. But if the legislature has not specified a distance, it might well fall to the courts to draw a line. Certainly there is some distance beyond which it would not be fair to treat protest activity as having any direct impact on the protested event.

Whether that line was crossed in this case is unclear. It certainly counts against the defendants that they were taking the opportunity of Matt Snyder's funeral to publicize their message. They wanted to be as close to the funeral as possible, so that even if their signs were not seen by mourners, their presence nearby would be felt.

The heroes of First Amendment cases are often unsavory or even immoral figures: pornographers, Klansmen, and neo-Nazis fill many pages of the official case reports. But it does not follow that every self-righteous demagogue is a First Amendment hero simply by virtue of the offense he gives. Protection of the right to peddle hate is a cost, not a benefit, of the First Amendment. Where that cost cannot be neatly separated from the responsible exercise of the right to free expression, we must bear it. However, statements designed to outrage bereaved parents fall into no larger category of valuable speech from which they cannot be cleanly carved out. Thus, the Maryland verdict ultimately gave the Westboro Baptists only what they so richly deserved, by making them accountable for the pain and harm they had inflicted.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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