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Sunday, November 04, 2007

Thoughts on the Westboro Baptist Church Verdict

My thanks to Dan and company for inviting me to spend some time here and for allowing me to defer from September.

I want to start my visit with the latest controversy surrounding Rev. Fred Phelps and his Westboro Baptist Church, famed for their anti-gay protests near the funerals of soldiers killed in Iraq and Afghanistan. Last week, a federal jury in Maryland awarded Albert Snyder, whose son, Marine Lance Corporal Matthew Snyder was killed in Iraq, nearly $ 11 million in compensatory and punitive damages for intentional infliction of emotional distress and invasion of privacy, based on statements the Church made on their web site and in a street protest near the Church where Matthew’s funeral took place. Tim Zick has an excellent CoOp overview of Westboro’s practices and the legal responses to them. Several states and the federal government have sought to control funeral picketing, usually by imposing “buffer zones” between protesters and the entrance to the funeral grounds, akin to the buffer zones placed between abortion protesters and reproductive health clinics (according to the First Amendment Center, 27 states have enacted such laws and another 7 have considered them). Their purpose is to preserve mourner’s peaceful “right-to-be-let-alone” privacy in circumstances of grief. The jury verdict brought an interesting exchange about controlling funeral protests between Tim and Dan Solove, as well as comments from Paul Gowder at Law and Letters. TortsProf Blog has the Complaint.

Lost in the discussion and media coverage is that this case does not implicate the privacy versus free speech divide ordinarily at issue with Westboro’s protest activities. The case simply is about the obnoxious and offensive content of the Church’s expression and a jury verdict designed to stifle that expression. More after the jump

First, according to the Baltimore Sun, Snyder testified that he did not see the signs at the funeral; he only saw them after the fact, in watching news reports about the protest. The evidence at trial also indicated that the seven protesters there remained approximately 1000 feet away from the Church, well beyond Maryland’s 300-foot buffer zone (and well within the limits of what a state constitutionally could impose as a protest buffer). And the Complaint alleged harm resulting not only from only the signs and messages displayed at the funeral, but also statements posted on Westboro’s web site. But the debate over Westboro’s tactics always has been one of time and place, tied to the unique emotional harm caused by seeing and hearing such speech, in up-close, face-to-face encounters, in a particularly vulnerable moment. If Snyder did not see or hear these messages at the time, and if the speakers were a fairly good distance away, that unique harm is absent. Now he simply is recovering damages for offensive public expression.

Second, to the extent the funeral took place indoors while protesters displayed signs out-of-doors, the right-to-be-left-alone claim becomes weaker. In the abortion-protest context, the Supreme Court in Hill v. Colorado upheld a floating eight-foot buffer zone between protester and objecting patient, designed to protect patients from unwanted face-to-face communications. On the other hand, the Court has insisted that protesters cannot be restricted in the types of signs and written messages they display outside the building; to the extent those inside might be offended, they can avert their eyes by pulling the shades. Same here: No one inside the church had to see the signs.

Third, The New York Times cited an A.P. report that U.S. District Judge Richard D. Bennett told the jury that there was limited First Amendment protection for speech that is vulgar, offensive, and shocking; that the jury had to decide “whether the defendant’s actions would be highly offensive to a reasonable person, whether they were extreme and outrageous, and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.” But that does not sound like an appropriate statement of the law. “Vulgar, offensive, and shocking” are not recognized categories of unprotected expression, Nor is it clear what it means for speech to be “vulgar;” “God hates fags” (a Westboro favorite) is not unprotected. Speech that is “highly offensive to a reasonable person” also is not unprotected. In fact, a whole lot of speech that is extreme and outrageous, offensive and shocking, remains entitled to First Amendment protection. That protection disappears—and the speech becomes subject to damages under tort rules such as intentional infliction—only if it also falls into some recognized category of unprotected speech, such as fighting words, true threats, or knowingly false statements. None of the expression at issue seems to fall in those categories, especially the statements on the web sites.

Fourth, this case shows why unpopular speakers no longer want to put their faith, and their speech, in the hands of a jury. In essence, a jury awarded Snyder, a very sympathetic individual, $ 11 million from Westboro, a very unsympathetic organization, because Westboro members said offensive and reprehensible things, to the world, about his son.

I do not want to sound unsympathetic to the Snyders for their loss or for having to endure such offensive speech in their time of mourning. But I am sympathetic to principles of free expression, including the principle that even the most offensive and intolerable speech on core political ideas and on matters of public concern cannot be chilled by the imposition or threat of damages. My tentative prediction is that this is a high-profile blip, but the verdict does not survive appeal, even in a generally non-speech-protective circuit as the Fourth.

Update: Monday, 7:30 a.m. C.S.T.:

Michael Dorf devotes his new FindLaw column to the Westboro verdict. He concludes that the verdict should survive constitutional scrutiny because most space limitations on protesting survive constitutional scrutiny. He raises several points, with some comments.

First, Dorf argues that restrictions on "targeted picketing" are permissible, citing Frisby v. Schultz, although noting that this would require an important, and dangerous, extension of Frisby, which was based on a unique-sanctity-of-the-home rationale, to all protests. The bigger problem for this argument is that the protesters in Frisby were standing on the sidewalk directly and solely in front of the targeted house, not 1000 feet (more than three football fields) away. Moreover, the Court later held that this could not support a larger buffer zone (300 feet) that would prohibit general marching in an area including one building. Because the Westboro members were so far away, I am not sure Frisby helps.

Second, Dorf argues that the open First Amendment issue is the maximum protest buffer zone. According to the First Amendment Center, most of the funeral-protest laws impose buffers of 300-500 feet, to which most courts likely will defer. But the Supreme Courthas struck down a 300-foot zone in one abortion-protest case. I do not believe a 1000-foot buffer zone could stand, absent an indication that the speech at issue is otherwise-proscribable (because involving true threats or fighting words. And, since fighting words necessarily require a targeted, face-to-face encounter, can you even have fighting words from that great a distance?

Third, Dorf argues that Snyder (and his deceased son) are not public figures, taking this case out of the protective regime of New York Times v. Sullivan and Hustler v. Falwell for private tort actions involving speech. True enough. But this remains political speech on a matter of public concern, so some greater First Amendment protection ought to apply than in the ordinary, direct offensive comments I/I/E/D case. Otherwise, anyone offended (not defamed, just offended) by public political expression on an issue into which he has been drawn is given the power to effectively shut that speech down.

Second Update: Monday, 11:00 p.m. C.S.T.:

Mike Dorf follows up his FindLaw column with an article about the Phelps family from Prison News. Here is a money quote from the article, as quoted on Mike's blog:

As one writer put it, the church members also rejoice in the 9/11 attacks, Hurricane Katrina, the tsunami that devastated Asia two years ago, and AIDS. They believe God hates Santa, Jews, Catholics, Muslims, soldiers, me, and if I had to guess, they probably believe that God hates you. Apparently Phelps and his followers believe they are the only people whom God doesn't hate.

Third Update: Tuesday, 1:00 p.m. C.S.T.:

Mark Graber posts an op-ed about the case, arguing, as I did, that the jury simply slammed an unsympathetic defendant to the benefit of a sympathetic plaintiff, without any real standards or legal basis. Mark looks at the history underlying New York Times and closes with this point that captures the issue:

Fred Phelps is no Martin Luther King Jr. Almost every decent impulse in the Westboro Baptist Church case supports Albert Snyder. Still, as the experience of the NAACP and New York Times in the racist South demonstrates, we risk silencing the best social outcasts as well as the worst when we give juries the power to determine whether speech meets constitutional standards and allow them to award unlimited damages. That there ought to be a law against Fred Phelps does not mean that permitting juries to determine liability on the basis of subjective criteria, and determine damages without any standards at all, is the best law.

Posted by Howard Wasserman on November 4, 2007 at 08:52 PM in Constitutional thoughts | Permalink


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If anybody, anywhere, can find the jury instructions, I'd certainly love to read them.

The standards used in this case are absurd. The precedence was set from a woman who was kidnapped at gunpoint, raped and physically assaulted, thus resulting in severe emotional damage. Without reading a bit of testimony, I have a hard time believing the protest did such damage. They offended and angered.

I have serious doubts in 3 of the 4 counts of this standard:

1) Conduct must be intentional... SCOTUS has established, and reaffirmed that speech is not action, and thus, not conduct. As I have not heard this argument from others, its possible to be the weakest, but given the precident for the standard, certainly worth mentioning.

2) Conduct was outrageous. Conceded (save for the 'conduct' portion mentioned above).

3) Must cause severe emotional stress/damage. Many states have actually instituted additional measures on this, as it must be medically measured. Not knowing all of the details of the trial, I can only guess that the family did not institutionalize themselves.

4) Damage must correlate to the conduct. Was there zero burden of proof in this aspect? Did the court take the family's word? Even if #3 was established, exactly how could correlation be established, as there was certainly emotional stress from losing their son at the same time.

While I find the group repulsive, the application of this standard is negligent, at best. The judge should be ashamed. Appeals should be a rather short process for reversal.

Under the standards of this particular trial, all of the news stations covering the event may very well be liable as well. It was, after all, their report that the family saw, not the protest itself.

Posted by: usedmagz | Nov 20, 2007 10:01:38 PM

Here are the counts of the complaint and whether they went to trial:

Count I -- Defamation -- out
Count II -- Invasion of Privacy, Intrusion upon Seclusion -- tried
Count III -- Invasion of Privacy, Publicity to Private Life -- out
Count IV -- Intentional Infliction of Emotional Distress -- tried
Count V -- Civil Conspiracy -- tried

Posted by: Edward Still | Nov 5, 2007 10:04:44 PM

Howard Wasserman: "But this remains political speech on a matter of public concern, so some greater First Amendment protection ought to apply than in the ordinary, direct offensive comments I/I/E/D case. Otherwise, anyone offended (not defamed, just offended) by public political expression on an issue into which he has been drawn is given the power to effectively shut that speech down."

The key words here are "into which he has been drawn." The families of fallen soldiers have been drawn into the issues raised by the Westboro Baptist Church solely because the Church has chosen to draw them in. I don't think there are strong First Amendment interests in preventing private individuals who have done nothing to make themselves legitimate targets of abuse from seeking civil damages for abusive speech, even if the speaker claims to speaking on issues of public concern. Indeed, that is one of the reasons that NYT and Hustler only apply to public figures: private figures have not intentionally put themselves in the position of being objects of derision.

However, this assumes that the abusive speech in question is actually directed at the private individuals. The fact that the Westboro protesters were 1000 feet away and the father only saw them on TV significantly weakens his claim. On the other hand, if the protesters named the son by name or otherwise directed their speech specifically at the family, it seems to me that ordinary private-figure IIED analysis or something like it should apply.

Posted by: AF | Nov 5, 2007 7:52:07 PM

The Court recently (incorrectly, in my view, but that is another story) has carved out a limited right-to-be-let-alone from unwanted speech in public spaces. Thus far, the right is limited to uniquely vulnerable groups in uniquely vulnerable situations (women seeking reproductive health services, mourners at funerals) and only from particular forms of expression--up close, face-to-face, usually aggressive forms of expression. So the right is being protected by things such as buffer zones between speaker and listener. Until Snyder, it never had been used against written expression displayed at a distance. Which is why I do not see the verdict standing.

Posted by: Howard Wasserman | Nov 5, 2007 4:22:31 PM

The entire privacy argument has me a wee bit confused. As far as I understand, there is no right to privacy in the public square in the USA. Or has that changed? I have a limited right to privacy within my home and upon my person, but those are subject to warrant or certain instances of police proceedings to search. Or am I just confused?



Posted by: MLO | Nov 5, 2007 1:21:08 PM

I can't say I agree with this judgment, as it seems like the same tactics of the Southern Poverty Law Center: use the legal system to force your opponent into bankruptcy in such a manner that his life is ruined, because you can't convict him personally for saying things you don't like. The case itself was not a free-speech issue; rather, the argument that won in court was that Phelps and his crew had intentionally inflicted emotional distress and invaded the privacy of the family of a soldier killed in Iraq. However, if they had indeed caused emotional distress to the father and his family (and they certainly did), then you would think that a fair and impartial judge would award enough damages to genuinely slap Phelps and make him remember this…not crush him financially in such a manner that the Westboro Baptist Church would have to sell their homes, all of their worldly possessions, and forfeit all income they make for the rest of their lives to pay it.

Is $11 million a fair payback for insults from a bunch of wackos no one is going to believe anyway?

This seems more like the actions of a jury who were outraged by the Westboro Baptist Church and wanted to stop Phelps once and for all, rather than simply handle this one single incident. It's the same way that Morris Dees stopped White Aryan Resistance, Aryan Nations, and other hate groups.

The WBC's pickets and protests were legal, but the hurt they inflicted on the soldier's family wasn't. They should be punished for their hurtful actions, not for their legal ones.

Besides, Phelps' family manage their own law firm, and they know how to use the legal system. There's no doubt this case will be appealed, and we can only see what happens when other judges look at this case.

Posted by: Modemac | Nov 5, 2007 7:35:09 AM

Yes I know the Baptists are coming under great criticism, but are they alone in deserving it? There is a startling video on this very issue:

Is American Christianity, really Christian? Pastor Paul Washer


Posted by: george | Nov 4, 2007 10:41:50 PM

It would be nice to have a look at the jury instructions, because Bennett seems have pulled most of it out of nowhere (if the newspaper report is correct). He sounds like a high school teacher trying to kick the prom queen out for doing something "shocking."

Posted by: S.cotus | Nov 4, 2007 9:27:58 PM

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