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4th Circuit affirms protection for repulsive speech

By Douglas Lee
Special to the First Amendment Center Online

The 4th U.S. Circuit Court of Appeals last week reminded us of two unfortunate realities. First, defending First Amendment freedoms often involves defending sickening speakers. Second, in many instances, the more outrageous the speech, the more likely it is to be protected from civil liability.

Snyder v. Phelps involved the all-too-familiar efforts of Fred Phelps and his Topeka, Kan.-based Westboro Baptist Church to garner news media attention at the expense of family and friends grieving the loss of soldiers killed in battle. In this case, the soldier was Matthew Snyder, a native of Westminster, Md., who was killed in Iraq on March 3, 2006.

Snyder was buried a week later in his hometown. Phelps, continuing a practice he has engaged in for several years, descended on Westminster with two of his daughters and four of his grandchildren to picket the funeral. Their mission, they freely admitted, was to publicize their purportedly religious beliefs that God hates homosexuality and punishes the United States for its tolerance of homosexuality, particularly in the military.

Outside the funeral, the picketers carried signs that read, “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Pope in Hell,” “Fag Troops,” “You’re Going to Hell,” “God Hates Fags,” “Semper Fi Fags,” “Thank God for Dead Soldiers,” “Thank God for IEDs” and “Priests Rape Boys.” The group then continued its protest in Annapolis, Md., at the Maryland State House and the U.S. Naval Academy.

After returning to Kansas, one of Phelps’s daughters carried the protest further, posting on the church’s Web site,, an “epic,” “The Burden of Marine Lance Cpl. Matthew Snyder,” in which she claimed, among other things, that Snyder’s parents “taught Matthew to defy his creator,” “raised him from the devil” and “taught him that God was a liar.”

Moreover, she wrote, “God rose up Matthew for the very purpose of striking him down, so that God’s name might be declared throughout all the earth. He killed Matthew so that His servants would have an opportunity to preach His words to the U.S. Naval Academy at Annapolis, the Maryland legislature, and the whorehouse called St. John Catholic Church at Westminster where Matthew Snyder fulfilled his calling.”

As planned, the group’s hatred generated news coverage of the funeral, and Snyder’s father saw television coverage of the protests and signs. He also later discovered the epic on the church’s Web site. He then sued Phelps and the others for invading his privacy and intentionally causing him emotional distress.

Although Maryland, like the federal government and nearly 40 other states, prohibits protesters from interfering in military funerals, that statute was not an issue in Snyder, as no one claimed the picketers had interrupted the service. Instead, Snyder’s father claimed the group’s conduct was so offensive that it interfered in his grieving.

According to the trial court, Snyder’s father’s distress was genuine.

“Throughout the trial,” the court wrote in a post-trial opinion, “Plaintiff demonstrated significant emotion, appearing visibly shaken and distressed, and was often reduced to tears. On occasion during the trial, Plaintiff requested and was granted leave from the courtroom to compose himself. The jury witnessed firsthand Plaintiff’s anguish and the unresolved grief he harbors because of the failure to conduct a normal burial.”

Having witnessed this anguish, the jury awarded Snyder’s father $2.9 million in compensatory damages and $8 million in punitive damages. (The trial court later reduced the punitive-damage award to $2.1 million, for a damage total of $5 million.) The protesters appealed, claiming their speech was protected under the First Amendment.

The 4th Circuit, though troubled by the picketers’ distasteful opportunism, agreed. Quoting former 4th Circuit Judge Kenneth Hall in Kopf v. Skyrm (1993), the appeals court noted Sept. 24 that judges defending the Constitution “must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply." Then, quoting Justice Felix Frankfurter's dissent in United States v. Rabinowitz (1950), Hall added: "It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people."

The duty to protect offensive speech, the court said, also has long been recognized by the U.S. Supreme Court. In 1940, for example, the high court in Cantwell v. Connecticut emphasized the long-term benefits of tolerating repulsive speech:

“To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.”

These excesses or abuses, however, are not protected from civil liability if they express statements of fact about non-public figures. To decide whether such is the case, the court of appeals said, it is necessary “to assess how an objective, reasonable reader would understand a challenged statement by focusing on the plain language of the statement and the context and general tenor of its message.” Also important is the verifiability of a statement, because “a statement not subject to objective verification is not likely to assert actual facts.”

Though concerned that a few of the signs and some of the statements in the epic at least implied false facts about Snyder, the court ultimately concluded that their general tenor negated any impression that they intended to state facts.

Looking first at the signs, the court said they did not assert facts about Snyder because they contained “strong elements of rhetorical hyperbole and figurative expression.” Moreover, the court said, a “distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts.”

Turning to the epic, the court said the protesters could not be understood to have stated false facts about Snyder in it. “They utilized distasteful and offensive words, atypical capitalization, and exaggerated punctuation,” the court wrote, “all of which suggest the work of a hysterical protestor rather than an objective reporter of facts.”

Although the court’s ruling is entirely consistent with existing First Amendment law, one cannot help but be troubled by the notion that a hysterical speaker is entitled to more protection than a calm one, particularly when the complaint is that the speaker caused emotional harm. It surely was of no comfort to Snyder’s father that the authors of the epic ignored (or did not know) the rules of capitalization and punctuation, and the group’s use of inflamed rhetoric likely increased, rather than decreased, the pain their words caused Snyder’s family.

Ultimately, though, the message in Snyder is that one family’s pain, however real and however justified, cannot trump the First Amendment freedoms of a protester, however hysterical and however offensive. Undoubtedly, it’s more than a little clichéd to note that those freedoms were among the many Matthew Snyder died protecting.

But, for better or worse, it’s also true.


4th Circuit nixes $5 million verdict against funeral protesters

Three-judge panel finds signs used by members of Kansas church to picket Marine's funeral contained 'imaginative and hyperbolic rhetoric' protected by First Amendment. 09.25.09

Funeral protests

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