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How Protected Is Free Speech?

Deana Pollard Sacks, November 7, 2010

Synder v. Phelps is a civil lawsuit that is currently under review by the United States Supreme Court. The Court heard oral arguments on October 6 and is expected to render an opinion by spring of 2011.

Fred W. Phelps founded the Westboro Baptist Church in Topeka, Kansas in 1955 and has been the only pastor of the church since its inception. The church membership consists of approximately 60 or 70 members, 50 of whom are related to Phelps. The church members practice a "fire and brimstone" fundamentalist religious faith. They believe that God hates homosexuals and punishes America for its tolerance of homosexuality by killing American soldiers, and established the website www.godhatesfags.com to publicize their views. Church members began picketing funerals of fallen soldiers to draw attention to their religious beliefs several years ago and have increasingly picketed funerals to attract media attention.

Marine Lance Corporal Matthew A. Snyder was killed in Iraq in the line of duty on March 3, 2006, and his parents chose to have a funeral for him in their hometown of Westminster, Maryland at the St. John's Catholic Church. His father, Albert Snyder, spoke to the media immediately after his son's death and obituary notices were placed in the local newspapers concerning the time and place of his son's funeral, hence the Phelpses' ability to show up at the funeral.

Two days before the funeral, the Phelpses sent out an announcement of their intent to protest the funeral of Matthew Snyder. Fred Phelps and other Westboro Baptist Church family members traveled from Topeka to Westminster to picket the funeral. The church members carried large signs near the funeral containing the following general content: "God Hates the USA," "America is doomed," "Pope in hell," "Fag troops," "Thank God for 9/11" and "Semper fi fags." There were also signs that appeared to target Matthew Snyder personally, such as "You're going to hell," "God hates you," and "Thank God for dead soldiers."

In addition, the Phelpses published an "epic" on their website that clearly targeted Matthew Snyder and his parents personally, titled "The Burden of Marine Lance Cpl. Matthew Snyder." In the epic, the Phelpses accuse Albert Snyder and his ex-wife Julie Snyder of teaching Matthew to "defy his creator" and to "divorce and commit adultery," of raising him "for the devil," and of teaching him that "God is a liar." The epic went on to state that God rose up Matthew in order to kill him and that Matthew "fulfilled his calling" to create an opportunity for others to preach God's word.

Matthew Snyder's father, Albert Snyder, sued the Phelpses on a variety of civil claims, and his claims for invasion of privacy, intentional infliction of emotional distress, and civil conspiracy survived pretrial motions and proceeded to trial. At trial, Mr. Snyder presented evidence that the Phelpses' signs and epic caused him extreme and severe emotional distress leading to physical illness, worsening of his diabetes, severe depression, and an inability to have positive memories about his son, as the Phelpses' messages were irreversibly attached to his memories of Matthew. The jury returned a verdict for $2.9 million in compensatory damages and $8 million in punitive damages on Mr. Snyder's claims for invasion of privacy and intentional infliction of emotional distress. The trial court reduced the punitive damages award to $2.1 million, for a final judgment of $5 million.

The Fourth Circuit Court of Appeal reversed the trial court judgment and held it unconstitutional to allow a civil remedy based on the content of the Phelpses' speech. The Fourth Circuit decided that certain categories of speech are absolutely protected from punishment by the First Amendment, that is 1) statements on matters of public concern that "fail to contain a provably false factual connotation" and 2) "rhetorical hyperbole," defined as statements employing "loose, figurative, or hyperbolic language." The Fourth Circuit then found that all of the Phelpses' speech fell within these categories and reversed the trial court's judgment and assessed costs against Snyder. The Supreme Court granted review.

Based on the Supreme Court's prior case law in which the constitutionality of civil liability for speech was reviewed, as well as statements made by the justices at oral arguments on October 6, the Supreme Court appears to be poised to reverse the Fourth Circuit's decision. Historically, harmful speech was not protected from lawsuits for damages. However, in 1964, the Supreme Court determined that civil liability for speech may be prohibited by the First Amendment to the United States Constitution similar to the way criminal penalties for free speech are prohibited.

The case was New York Times v. Sullivan. Sullivan, a government official with control over the police force, sued the Times after the newspaper ran an "advertisement" seeking funds for the defense of Martin Luther King, Jr., who the Times characterized as being wrongfully prosecuted and harassed by the police in Montgomery, Alabama. Despite some false statements of fact concerning the level of harassment perpetrated against King and his followers, the Court reversed the jury verdict in favor of Sullivan, explaining that the social value of liability for civil misconduct must be balanced against the social values protected by the First Amendment. Due to the political nature of the advertisement, which the Court has characterized as "core" speech at the heart of the First Amendment, punishment of such speech could not be allowed unless a high level of intent and false, defamatory statements of fact can be proven. The balance weighed against liability in this case, to give the political freedom of speech the "breathing space" necessary to avoid chilling speech relating to self-government.

In a series of cases subsequent to New York Times v. Sullivan, the Court identified a number of balancing factors to consider when deciding whether civil liability for harmful speech is constitutional. The most important are 1) the nature of the speech as political or public in nature versus speech relating to purely private affairs; 2) the vulnerability of the plaintiff; that is, government officials and famous people are less vulnerable than persons who lead private lives; and 3) whether the plaintiff sustained actual, out-of-pocket losses, such as property losses, as opposed to harm to mere "feelings or reputation." Public figure plaintiffs complaining about reputation damage resulting from public interest speech face the greatest hurdles to establishing liability, whereas private individuals who complain about injuries resulting from speech relating to private concerns have the easiest time establishing civil liability.

At oral argument in Snyder v. Phelps, the justices implied that Mr. Snyder is a private person, and that at least some of the speech perpetrated by the Phelpses was not of legitimate public or political concern, but rather, targeted the Snyders for personal and extremely vicious attacks on their character. It thus appears that the Court will allow Mr. Snyder to establish civil liability with less concern for the First Amendment than in cases such as New York Times v. Sullivan. This means that the Court is likely to reverse the Fourth Circuit's decision and either reinstate the trial court's judgment or remand the case for another trial consistent with its decision.

For a complete analysis of the Supreme Court's speech-tort jurisprudence, please see Deana Pollard Sacks' "Negligent Speech Torts" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1656114.

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