02 December 2012


'To Drink the Cup of Fury: Funeral Picketing, Public Discourse and the First Amendment' by Steven Heyman in 45 Connecticut Law Review (2012) 101-176 comments that
In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence—the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive First Amendment protection, for the picketing is intended to condemn the deceased and to inflict severe distress on the mourners in violation of their rights to privacy, dignity, emotional well-being, and religious liberty. Finally, the Article shows that although Westboro prevailed in Snyder, this may prove to be a Pyrrhic victory, for the Court also suggested that states can protect mourners through carefully drawn buffer-zone laws. ...
How far does the First Amendment’s protection for freedom of speech extend? May the law ever restrict speech because it causes emotional or dignitary injury to others? These were the central questions in the Supreme Court’s recent decision in Snyder v. Phelps. On March 3, 2006, a young Marine named Matthew Snyder was killed in the line of duty in Iraq. One week later, Pastor Fred Phelps Sr. and several of his followers from the Westboro Baptist Church (“Westboro”) picketed Matthew’s funeral in Westminster, Maryland. The demonstrators held up signs emblazoned with slogans like “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “America is Doomed.” These signs reflected Westboro’s belief that God was killing American soldiers to punish the nation for tolerating homosexuality and other conduct that the church regarded as sinful.
Matthew’s father, Albert Snyder, brought suit against Westboro and its members for the anguish that he suffered from their picketing of the funeral. A federal jury held the defendants liable for the torts of intentional infliction of emotional distress (“IIED”) and invasion of privacy and awarded Snyder five million dollars in compensatory and punitive damages. In March 2011, however, the Supreme Court overturned this award on First Amendment grounds. Writing for the majority, Chief Justice John G. Roberts Jr. acknowledged that Westboro’s picketing had “inflict[ed] great pain” on Matthew’s father and that “its contribution to public discourse may [have been] negligible.”
Nevertheless, Chief Justice Roberts maintained that the protesters had addressed the public as a whole on matters of public concern while standing on public property that was located a considerable distance from the funeral. Under these circumstances, he held that the picketing was entitled to the “special protection” that the First Amendment affords to speech on matters of public concern.
The Chief Justice was careful to note that the decision was a “narrow” one that was “limited by the particular facts before [the Court].” But the significance of the case goes far beyond that. Funeral picketing inflicts greater pain and distress on its targets than virtually any other form of expression. Thus, Snyder is likely to be regarded as a leading authority for the view that the First Amendment generally bars the state from restricting the content of speech on public issues in order to protect individuals from emotional or dignitary injury. Of course, there is nothing novel about this view - in recent decades, it has become the dominant position in First Amendment jurisprudence. As the Snyder case shows, however, this position is deeply problematic, for it requires the Court to protect speech even when it causes great harm and makes little or no “contribution to public discourse.”
In this Article, I criticize the Snyder decision and the conception of free speech on which it is based. After summarizing the decision in Part II, I argue in Part III that the majority fundamentally misunderstood the nature of Westboro’s funeral picketing. As the group’s own statements make clear, the message of God’s hatred is not simply addressed to the public in general; it is also directed toward the mourners in particular. As Shirley Phelps-Roper has explained, Westboro’s goal is to “put [] the cup of the fury and wrath of God to your lips and [to make] you drink it.” The real issue in cases like Snyder is whether there is a First Amendment right to address speech of this sort to the mourners at a funeral and thereby cause them profound emotional distress.
The majority did not directly confront this issue because it failed to appreciate the fact that Westboro’s speech was directed to the mourners as well as to the public at large. However, the Court did articulate a view of the First Amendment that generally would preclude the state from regulating public-concern speech in order to protect individual dignity and personality. In Part IV, I argue that this view not only gives short shrift to those values, but also tends to undermine the sphere of public discourse itself by negating the practical and normative conditions on which it depends.
In Part V, I outline an alternative theory of the First Amendment that seeks to overcome these problems. According to this view, which I shall call the liberal humanist approach, public discourse should not be understood as a realm in which all standards of civility and respect have been suspended, or as a marketplace that is capable of operating on its own and neutralizing harmful expression. Instead, we should understand public discourse as discussion among persons who recognize one another as free and equal members of a self-governing community. On this view, the right to free speech carries with it a duty to respect the personality and rights of others. In more general terms, the liberal humanist view holds that freedom of speech exists within a broader framework of rights, all of which are rooted in respect for human freedom and dignity and are intended to promote the full development and flourishing of human nature. The First Amendment should not be interpreted to protect speech that violates the rights of other people, except in situations where the value of the speech outweighs the value of the other rights with which it conflicts.
The Article then applies this theory to funeral picketing. In the interest of clarity, I begin in Part VI with the paradigmatic case of funeral picketing - a situation in which the protesters stand so close to the funeral that they are able to communicate with the mourners in a direct and immediate way. I argue that such picketing causes serious injury to the mourners and violates their rights to emotional well-being, privacy, dignity, and religious or spiritual liberty. The value of the speech does not warrant the injuries that it causes, because the protesters are not justified in communicating directly with the mourners and there is no need to stand so close to a funeral to communicate with the public at large. For these reasons, the First Amendment should not protect funeral picketing in its paradigmatic form.
In Part VII, I consider whether, under the liberal humanist approach, we should reach the same conclusion on the facts of Snyder itself. This is a much more difficult case because the protesters could not be seen or heard from the church where the service took place. However, Westboro’s members regarded themselves as picketing the funeral; they could be seen from the procession; they sought to convey an intensely hateful message to the mourners; they succeeded in communicating this message, albeit in an indirect way; and their conduct resulted in severe emotional and dignitary injury. Once again, they lacked sufficient justification for acting as they did. On these grounds, I would hold that their actions were not protected by the First Amendment. At the same time, I agree with the majority that one of the requirements for IIED liability - a jury determination that the defendants’ conduct was “outrageous” - is simply too vague a standard to govern cases involving speech that to a substantial extent involves matters of public concern. Thus, although I believe that a state could restrict the defendants’ conduct in Snyder without running afoul of the First Amendment, I agree that this conduct should not give rise to tort liability for IIED.
Finally, in Part VIII, I argue that the Court was right to suggest that the First Amendment allows the state and federal governments to enact bufferzone laws that require protesters to stand a certain distance away from funerals, and I contend that this position should be interpreted broadly to uphold laws that require the protesters to stand out of the mourners’ sight and hearing, as the Court found that they did in Snyder itself.
Heyman concludes that
Snyder v. Phelps appears to strike an important blow for the First Amendment freedom of speech by making clear that it encompasses even the most unpopular and offensive kinds of expression. As I have tried to show, however, the decision is deeply problematic for several reasons. To begin with, the Court fundamentally misunderstands the nature of Westboro’s expression. The majority maintains that “Westboro’s choice to conduct its picketing [near Matthew Snyder’s funeral] did not alter the nature of its speech,” which was primarily intended to communicate with the public on matters of public concern. But Westboro’s members did not regard themselves as merely holding a demonstration that was “planned to coincide” with the funeral. Instead, they announced that they would “picket [the] funeral” in order to proclaim that Matthew was “[n]ow in Hell” and to convey a message of God’s hatred not only to the public in general but also to his family, friends, and religious community And as the record shows, Matthew’s father received this message loud and clear.
In this way, the Court fails to recognize the human meaning of Westboro’s picketing—the meaning that it had for those who engaged in it as well as for those who were targeted by it. The Court also fails to appreciate the human impact of the speech. Although the majority acknowledges that the picketing caused great distress, it attributes that distress to offense at Westboro’s ideology, rather than to the profound personal attack that the group leveled against Matthew Snyder and his family.
The deepest problem with Snyder is that it reinforces a theme that has become increasingly prevalent in our jurisprudence—the notion that the First Amendment requires us to protect public speech regardless of how insulting, abusive, or degrading it may be. According to the Court, we must take this position in order to avoid any “potential interference with a meaningful dialogue of ideas.” As the case of funeral picketing makes clear, however, this view is ultimately self-defeating, for a meaningful dialogue is possible only when the participants show one another at least a minimal level of respect. In this way, the Court’s approach not only negates the law’s protections for individual personality, but also undermines the practical and normative conditions for public discourse itself.
This Article has offered an alternative theory of the First Amendment. That theory holds that the same values that support freedom of speech also give rise to other fundamental rights, including privacy, dignity, emotional well-being, and other facets of what Justice Brandeis called the right to “an inviolate personality.” Westboro’s funeral picketing invades those rights in the most blatant manner by intentionally interfering with the mourners’ ability to bury a loved one in peace. Although Snyder largely precludes the use of tort law to protect these rights, it does suggest that buffer-zone laws may be enacted for this purpose. Imposing reasonable restrictions on funeral picketing would not undermine our constitutional commitment to freedom of expression, but instead would reaffirm the values of human freedom and dignity on which it is based.