23 January 2011

Snyder v. Phelps, the Westboro Baptists, and free speech

Sometime this spring, the Supreme Court will rule in the case of Snyder v. Phelps:
The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words."
If Supreme Court rules, as I believe they will, in favor of Snyder, I suspect there will be outrage among many who are just peripherally following the case.  There will be a lot of, "I don't agree with their message, but this is still free speech!" and "We need to protect the free speech of those we don't agree with!"  These are true statements, but they're also simplistic because people who are just peripherally following the case are going to think this case is about the signs, "Thank God for dead soldiers" and such.  And to some extent, the case is about the signs.  But it is much more about an "epic" or online posting that the Westboro Baptists made about Matthew Snyder which was personally about him, and directly addressed to him and his parents.

This case is about the clash between free speech and if and when that speech infringes on the Snyder’s personal interests protected by Maryland tort law.  To the extent that the Westboro Baptists' "epic" speech was private in nature (in other words, about Matthew specifically, and not public issues) and directed toward a private individual (Albert Snyder), it likely deserves less protection than otherwise pure political speech.  And to the extent that they may have intentionally caused emotional distress to Albert Snyder, the Westboro Baptists' speech may be are liable.

I strongly recommend listening to the oral argument at Oyez.  It will give you a better sense of the issues surrounding the case and why it's about more than just the signs.  I also recommend Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations by Deana Pollard Sacks in the Yale Law Journal Online, which I believe is the best analysis of the case that I have read.

So if and when the Supreme Court rules against the Phelps (and like I said, I believe they will), take a minute to temper your thoughts before you go all "high and mighty" that we need to protect the speech of people we don't agree with.  Sometimes that speech goes too far and intentionally invades the privacy of others.  In those cases, the speech is no longer protected.  We can disagree about the extent of this protection.  But simplifying this case solely to the free speech of their signs should not be your argument.
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