First reactions To Snyder

By Tom Goldstein
on Mar 2, 2011 at 11:08 am

By a wide majority today, the Supreme Court recognized a First Amendment right to protest peacefully near funerals on matters of public importance.  That right, the Court concluded, precludes state law tort claims, such as claims for intentional infliction of emotional distress.   The decision is a resounding affirmation of the right to engage peacefully in speech, even terribly hurtful speech, on matters of public import.

The Court concluded that the protests in this case met the public interest standard.  “The ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.’  The placards read ‘God Hates the USA/Thank God for 9/11,’ ‘America is Doomed,’ ‘Don’t Pray for the USA,’ …  While those  messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic Clergy—are matters of public import.”

The fact that the protesters appear at a funeral and refer to a particular individual – such as the service member for whom the funeral is being held – does not convert the protest into a discussion of a private matter unprotected by the First Amendment.

The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding.  “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief.  But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.”  The Court continued:  “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. …    Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court left undecided two important issues that it concluded were not squarely presented.  First, it  recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held.  The Court did not decide the constitutionality of that statute or other similar federal and state laws.  The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website.  But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing.  The Court was therefore able to limit its decision strictly to the context of funeral protests.