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Wednesday, October 06, 2010

Oral argument in Snyder v. Phelps

This morning, the Supreme Court hears oral argument in Snyder v. Phelps, a case I (and others, including Lyrissa) have written about repeatedly. At issue is the validity of a multi-million-dollar civil judgment for invasion of privacy against Westboro Baptist Church for its protest near the funeral of a soldier killed in Iraq. The jury awarded the father nearly $ 11 million, reduced to $ 6 million by the district court; the Fourth Circuit reversed, holding that the judgment was inconsistent with the First Amendment because the statements could not be understood as stating verifiable facts and thus could not form the basis for civil liability. Dan Solove explained last March why Snyder's claims are weak as a matter of tort law and as a matter of the First Amendment and I concur in his arguments. Cardozo Law Review De Novo recently published an extensive on-line symposium on the case. And Jason Mazzone offers his thoughts today.

I am anxious to see (and, starting this term, hear, at least by the end of the week) how the oral argument goes. The prevailing view is that Phelps/Westboro will win. But my recurring concern in this case always has been why SCOTUS granted cert. If, as I and other First Amendment scholars believe, the Fourth Circuit got it right as a matter of necessary free-speech principles and protection for even offensive speech, there seems no reason for the Court to take the case. There is no circuit split because this is the only major civil judgment against Westboro. The recent efforts in many states to regulate picketing at or near funerals (which is percolating in the lower federal courts) is not really in play here. Indeed, as Mazzone points out, Westboro complied with all the limits on their speech (they were 1000 feet away, did not disturb the funeral or attendees, and, in fact, Snyder only learned of Westboro's speech on the news and by going onto their website). Really, this case seems less about funeral protests and more about offensive speech generally.

Bu the Court typically does not grant cert simply to affirm lower courts, even on important constitutional liberty issues. Nor does the Court typically grant cert to affirm on narrower sub-constitutional grounds rather than constitutional grounds, where those sub-constitutional grounds are products of state law (there is apparently a good argument that Snyder failed to prove his case as a matter of state tort law--but SCOTUS typically does not concern itself with that). So what else is going on here? Perhaps we will see this morning.

Posted by Howard Wasserman on October 6, 2010 at 07:45 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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This case presents the quintessential "no win" situation... Either: restrictions placed on speech in a traditional public forum (street corners) are upheld under the guise of 'neutrality' ('time, manner, place' restrictions - even though legislatures clearly and solely acted to supress these particular unpopular/offensive views), or: You subject already bereaved family members of service men and women to even further pains (if that is at all possible), despite the fact their beloved perished defending the very freedoms the Phelps family enjoys/exploits. To cite Justice Holmes oft (mis)quoted cliche: "Hard cases make bad law" - well, this case ranks up there on the Mohs Hardness scale.
As a law student more than familiar with this case (and more familiar than I would like), I feel that regardless of the decision - justice will not be done. It simply cannot... From a legal scholar perspective, I am curious as to what the High Court has to say about the captive audience doctrine and this case... but....
Were I a Justice, the only way I could resolve this case would be: hand both parties a copy of Antigone - and then recuse myself...

Posted by: Brian | Oct 7, 2010 2:23:08 AM

I strongly recommend that everyone take the time to carefully read the brief prepared by the Attorney General of Kansas on behalf of his state and 46 other states. In particular, read their conclusions about the numerous technical mistakes in interpreting exisiting laws that were made by the 4th Circuit. I am not an attorney, but I do have a personal interest in this case because I am a combat veteran having served with Marines in Vietnam, the deceased was from my small town in Maryland, the funeral took place at my church, and my stepson attended high school with the deceased, graduating in 2003. Everyone in this town knew that Phelps and his fellow agitators were present, especially the father of the deceased who was forced to enter the church by a private entrance to avoid them. Without the presence of a large number of veterans on motorcycles who remained between Phelps and his crowd, it was obvious the 1,000 foot barrier established by Maryland State law would not have been observed by these demonstrators. With the passage of time we have all learned that the Ist Amendment, like all of the Amendments, is not sancrosanct. Extraordinary circumstances will arise that are worthy of considering the removal of protections by the Ist Amendment; specifically the Westboro Baptist Church, which is not really a Christian church with Christian values or even a real religion by any fair and rational evaluation. Westboro is a cancer in our midst and in this instance an unreasonable attack on our decency and humanity. We are not diminished in any way by restricting and sanctioning their behavior; on the contrary, it demonstrates that we are a civil society of rational people that can still make fair and equitable decisions for the common good. The real test in these cases is the willingness of society to bear the collective burden and consequences of not extending Constitutional protection in certain egregious circumstances. This is such a case.

Posted by: Bob Miller | Oct 6, 2010 12:35:18 PM

Here's the thing in this case: None of the funeral attendees--and in particular the plaintiff in the case--saw or heard the Westboro folks at the funeral or anything they had to say. They were 1000 feet away--probably the outer limit on a buffer zone that could pass constitutional muster. Mr. Snyder learned they were there only after the fact. If that is sufficient to say they "disturbed" the funeral, then there arguably is no limit to the concept--the funeral is disturbed by any protest of the funeral, even if they were 2000 feet, 5000 feet, in the next county; it would be enough that one family member found out that they were protesting somewhere, even if he found out after the fact.

AK: There is a circuit split on the validity of Time/Place/Manner restrictions on funeral protests--on the validity of the laws that have been enacted in response to Westboro's antics. But those rules are not in play here. Westboro was in compliance with any such restriction and still got sued. And the imposition of damages was (unlike the time restrictions) content-based--damages were imposed because of the content of Westboro's speech, not where they made it (since Mr. Snyder did not see/hear it at that time). So, yeah, the issue of Westboro's speech is percolating. But why this case?

Whitney: I agree the case is about the defamatory statements. But none of those statements were, under prevailing First Amendment principles, defamatory, since none could be read as making verifiable factual assertions. And given that the Fourth Circuit upheld the constitutional argument, I still question why the Court granted cert in what is, at bottom, a simple defamation/tort case.

Posted by: Howard Wasserman | Oct 6, 2010 12:04:08 PM

I believe your confusion is based on a fundamental misunderstanding of this case. This is not simply about the protests at the funeral -- which in fact led to an alteration in the funeral procession, interfering directly with the funeral -- but rather the defamatory statements made by the WBC on their website. Matthew Snyder's funeral was specifically targeted because he was military, his parents were divorced and he was Catholic -- all abhorrant to WBC. All of those points were addressed on the WBC website and why their primary claim of freedom of speech is based on the idea that Snyder was a public figure requiring a showing of actual malice.

Furthermore, one of the other questions framed by Snyder's superior counsel was whether Snyder's freedom of religion is inferior to WBC's freedom of speech. To forget that there are competing First Amendment interest here destroys the credibility of any agrument you make that this is simply about whether hate speech is protected. It is. That is not the question before the court.

I have not found one "scholar" who seems to look at the questions as they were framed before the court. That simply baffles me.

Simply put -- when can one individual infringe on anothers exercise of their First Amendment right and when can the states place time, place, manner restriction? Is there a compelling state interest to do so for a funeral? I would say in this case, absolutely. It becomes a public safety issue when this circus comes to town.

Finally -- there is one group/church/organization which protest funerals. I do not see the slippery slope argument when you construct a rule which prohibits protests at funerals. It is only ever going to apply to one group.

Posted by: Whitney Krosse | Oct 6, 2010 11:22:25 AM

There is a circuit split about the protected nature of Westboro's speech. For a view rejecting Westboro's First Amendment rights, see:

Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008) (upholding restriction barring protests within 300 feet from one hour before until one hour after a funeral service).

Posted by: AK | Oct 6, 2010 10:37:56 AM

Maybe it would help to explain my thought here. I tend to agree that Phelps et al. ought to win. But it can't be because they did not disturb the funeral or the attendees. Surely they did disturb them -- very much. At least some of the attendees were devastated when they learned that the funeral of their loved one had been invaded and perhaps even desecrated by these types.

The response might be -- well, they weren't physically or even emotionally disturbed *during the period of the burial itself* because they couldn't hear the protests. But that assumes that the meaning and importance of a funeral ends when the body hits the earth, or when the celebrant speaks his or her last word. I don't think that's true. Part of what is meaningful about a funeral is the memory and dignity of the event in the minds of the attendees -- to have done right by the deceased for eternity. And that memory has now been forever defiled by the protesters. So the funeral and the attendees, as I see it, have been greatly disturbed, and as a result I can't agree that this case is just about offensive speech generally.

Posted by: Marc DeGirolami | Oct 6, 2010 10:36:58 AM

Howard, thanks for the analysis. Would you explain what you mean when you say that the protesters "did not disturb the funeral or attendees"? Do you mean disrupt by physical interference?

Posted by: Marc DeGirolami | Oct 6, 2010 9:15:32 AM

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