By Leslie Z. Walker

The First Amendment Free Speech clause states, “Congress . . . shall make no law . . . abridging the freedom of speech.” 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 meriting the protection of the Free Speech Clause. In Snyder v. Phelps (2011) 562 U.S. ____ 131 S. Ct. 1207, the Supreme Court found that members of Westboro Baptist Church picketing the funeral of a soldier killed in Iraq were entitled to special protection under the First Amendment because the picketing was done at a public place on a matter of public concern.

Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. His funeral was to be held in his hometown, Westminster, Maryland. Phelps, founder of Westboro Baptist Church in Topeka, Kansas and six other parishioners traveled to Westminster to picket the funeral. Westboro Baptist Church believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in the military. Phelps and the other parishioners (“Westboro”) picketed the funeral, but did so in compliance with instructions issued by the police, restricting the picketing to a 10 by 25 foot plot of public land approximately 1,000 feet from the church. The picketers held signs reading, “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “ Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Gays,” “You’re Going to Hell,” and “God Hates You.” Snyder’s father saw the tops of the signs as the funeral procession passed by the picketers, but he did not see what was written on the signs until later that night on the news.

Snyder’s father filed suit in District Court for the District of Maryland, alleging state torts of 1) defamation, 2) publicity given to private life, 3) intentional infliction of emotional distress, 4) intrusion upon seclusion, and 5) civil conspiracy. The court granted Westboro summary judgment on the first two causes of action, and a jury found for Snyder on the remaining three. Phelps appealed, and the Appellate Court found the picketing was protected under the First Amendment.

The Supreme Court granted certiorari. Whether Phelps’ speech is protected under the Free Speech Clause depends on whether the speech is of public or private concern, which in turn depends on the content, form and context of the speech.

The Court found the content of the picketing including, 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 were matters of public import. The fact that the speech was made in the context of a private funeral did not transform the public speech to private speech. Further, there was no preexisting relationship between Phelps and Snyder suggesting the speech on otherwise public matters was actually personally directed at Snyder. The Court concluded the speech was public speech.

The Court next considered whether the picketing took place in a reasonable time, place and manner. The court found that because the picketing took place on public property, under police supervision, 1,000 feet from the church, and was not unruly, it was entitled to First Amendment Protection, even though it’s content was upsetting or hurtful. The Court quoted, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (Texas v. Johnson (1989) 491 U.S. 397, 414.) In public debate, we must tolerate insulting, and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. (Boos v. Barry (1988) 485 U.S. 312, 322.)

Justice Alito dissented, finding that the national commitment to free and open debates is not a license for the vicious verbal assault that occurred. Alito suggested alternative forums for such protest, including one of the nation’s 5,600 military recruiting stations, more than 4,000,000 miles of public roads, 20,000 public parks, or 19,000 Catholic churches.

In sum, even in the most tempting of circumstances, the Court maintained that the First Amendment protects public speech on public concerns in public spaces. The burden is on the offended to avert his eyes, according to the Court. (Erznoznik v. Jacksonville (1975) 422 U.S. 205, 210-211.)

Interestingly, since the occurrence of the Snyder funeral, Maryland has imposed a law restricting funeral picketing. The law however, would not have prevented the picketing at issue because it only prohibits picketing within 100 feet of funeral homes.

Leslie Z. Walker is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.