Our First Amendment guru’s take on a tough case

[Blogmeister’s Note: The Supreme Court has started issuing its opinions for the 2011 Term, so it’s time to let the Prognosticating Swami, Kevin Goldberg, crank up his haruspication and vaticination machine to let our readers know what they might expect from the Court. First case out of the box: Snyder v. Phelps, one of the thorniest First Amendment cases to come down the pike in a while. The Swami sat in on the Court’s oral argument in October. Here’s his take. Full Disclosure Alert: Kevin, representing the American Society of News Editors, signed onto an amicus brief in support of Phelps (or, more accurately, in support of the First Amendment rights at stake).]

This case is a poster child for the notion that the First Amendment exists primarily to protect the fringe elements of society. Rarely has the Swami’s crystal ball been so muddied after attending an oral argument at the Supreme Court. But equally rare is a case like Snyder v. Phelps.

Few cases in recent years have generated the attention of this one. The day of the argument, protesters supporting both sides were outside the Court, a huge amount of media were lined up more than an hour before the argument started, and I’m told that people had begun lining up to get into the Supreme Court chambers as early as 5:00 a.m. for a 10:00 a.m. argument – including even lawyers seeking to get into the section reserved for Supreme Court bar members.

Before we get too far ahead of ourselves, though, let’s look at the facts of the case.

It’s not an easy case to follow, let alone to choose sides in or to predict. In the eyes of many (including myself), to take the First Amendment side here is to align oneself with some bad actors who have done some despicable things. It’s not easy to support the Phelpses and it’s not easy to separate the heinous facts from the principles of law.

One party, Phelps, is a member of the Westboro Baptist Church, which is basically comprised of the Phelps family from Topeka, Kansas. Phelps kin constitute at least 50 of the 60 or 70 members of the church. Their extreme views include a belief that God is punishing the United States – especially the United States armed forces – for the country’s “permissive” views on homosexuality.  That belief leads them to protest at military funerals with signs condemning homosexuality (whether or not the soldier in question was homosexual).

The other party, Snyder, is the parent of Matthew Snyder, a Marine killed in Iraq in 2006. The Phelpses and their Church demonstrated at Matthew Snyder’s funeral.  Seven members of the Phelps family arrived with their usual inflammatory signs.  (How inflammatory? Very. For example, “Thank God for 9/11”, and “Fag troops”, and “You’re going to hell”, and “Thank God for dead soldiers”.) They also chanted. But in waving their signs and chanting their chants, they respected local ordinances as well as police requests and orders. In fact, while the rules required that they be at least 100 feet away from the church where the funeral was being held, they were actually over 1,000 feet away – and the funeral attendees never saw the signs or heard the chants.  (Matthew Snyder’s father testified that he wasn’t even aware of the protest until later that evening, when he saw it on a televised news report.)

The Phelpses also published a self-described “epic” on their website (www.godhatesfags.com). Titled “The Burden of Marine Lance Cpl. Matthew A. Snyder”, it claimed that the dead Marine’s parents “taught Matthew to defy his creator”, “raised him for the devil”, and “taught him that God was a liar”.  Again, though, the bereaved father didn’t read the “epic” until a few weeks after the funeral, when he found it after googling his son’s name.

Albert Snyder (the father) sued the Phelpses, claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress (IIED), and civil conspiracy.  His claims were based as much upon the epic as the funeral protest.

The trial court dismissed the defamation and publicity-to-private-life claims because most of the information contained in the epic was opinion, not fact, and the non-opinion portion consisted of factual information already publicly known from Matthew Snyder’s published obituary.  The trial jury found for the Snyder family on the other three claims, awarding $2.9 million in compensatory damages and $8 million in punitive damages.  The judge reduced the punitive damage award to $2.1 million, but otherwise left the jury’s verdict and award intact.

The Phelpses appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the District Court’s judgment award.  It concluded that the Phelpses were addressing a matter of public concern and, therefore, that the First Amendment prohibited imposition of liability unless there is a “provably false factual connotation”. According to the Fourth Circuit, that prohibition applied not just to the defamation claim but to the intentional infliction of emotional distress (IIED) and invasion of privacy claims as well, no matter how shocking, outrageous or offensive the speech might have been.

The Supreme Court took the case, identifying four issues for consideration. The issues touched on the interplay of principles involving free speech, freedom of religion, defamation, tort law and more.  So there’s clearly a lot going on here . . . and it showed during the oral argument. (I won’t summarize the argument – you can read the entire transcript for yourself or go all out and actually listen to it, thanks to the Supreme Court’s website.) But here are some impressions and my prediction of the outcome.

First, the Justices seemed to have trouble getting to the heart of the case. As usual, Justice Thomas didn’t ask any questions. Justice Kennedy really didn’t participate until Margie Phelps was arguing. Newly-minted Justice Elena Kagan jumped right in, much as her fellow native New Yorker and next-junior associate Justice Sonia Sotomayor has been known to do.  Justices Scalia, Alito, Breyer and Ginsburg really dug into the attorneys. But even their lines of questioning tended to be shorter and less consistent than other cases, as though the Justices themselves were having trouble getting their heads around it.

Most particularly, the Justices seemed to have trouble resolving how they should treat a situation in which a private person is bombarded with offensive speech on a matter ostensibly of public concern. The tension between the First Amendment, on the one hand, and society’s interest in protecting its members from IIED, poses a thorny issue. The Court addressed it in Hustler v. Falwell, a case involving a parody ad in Hustler magazine that mocked noted televangelist Jerry Falwell. There the Court ruled against Falwell’s IIED claim. But its rationale was based largely on the fact that Falwell was a “public figure” and, therefore, the First Amendment would ordinarily have precluded a successful defamation claim. The Court didn’t want to allow an IIED claim to permit an “end run” around that preclusion.

But in Snyder v. Phelps, Snyder is a private, not a public, figure. Does that make a difference?  Should it? What if the speech involves a matter of public concern, such as America’s policies regarding homosexuality? And is it possible that some speech might be protected by the First Amendment because it’s on a topic of public concern, while other speech is not because it’s just an outrageous, hate-filled rant?

On that last point, the key delineator may just be how each Justice feels about the extent to which some speech’s “outrageousness” might relieve it of First Amendment protection. The Court addressed that point in the Hustler case, pointing out the difficulties that such an approach presents:

“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

A Justice concerned about the subjectivity inherent in that approach is likely to rule for Phelps. By contrast, less concern about that subjectivity element could lead a Justice to go for Snyder here. The idea there would be that “outrageousness” may properly be discouraged, consistently with the First Amendment, through IIED litigation involving a “private” figure, even if the same may not be true if a “public” figure is involved. Think sliding scales: the more you move from a private figure plaintiff on a matter of purely private concern to a public figure plaintiff on a matter of public concern, the more outrageous the speech must be to entitle the plaintiff to damages.

During the argument, at one point or another each Justice revealed the lens through which he or she is viewing this case. I looked for those moments to help me divine where he or she stands.

With that in mind, let’s get to some predicting.

I’ve got it at 5-4, maybe 6-3, in favor of Phelps. 

Here’s how I break it down.

Clearly for Snyder:

There’s no question in my mind that Justices Alito and Roberts will be voting for Snyder.

Alito is the weakest on the current Court when it comes to the First Amendment. He was the only Justice who voted to uphold a clearly overbroad law in United States v. Stevens; his concern appeared to center on concerns of morality and proper behavior, rather than First Amendment interests.

Despite some indications that Chief Justice Roberts may not be that bad on First Amendment cases, in the Snyder argument he seemed convinced that the tort of IIED could exist even where a matter of public concern exists. One question he asked really stood out. During Phelps’ argument, Roberts asked:

[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?

This indicates to me that the Chief Justice is not willing to foreclose as a matter of law the possibility that an IIED claim can permissibly be pursued when a private figure plaintiff is suing based on speech on a matter of public concern.

Likely for Snyder

Justice Kennedy is also one who is generally favorable to the First Amendment, but he seemed particularly concerned that allowing groups like the Phelpses and their church to escape liability would open the door to everything short of outright stalking and harassment. He described the Phelps position as advocating the ability to follow any citizen around at any point, and noted that “torts and crimes are committed with words all the time”. Taking these observations together, I feel that he’s wary of giving unfettered rights to inflict insult in all situations.

Clearly for Phelps:

Justices Ginsburg, Kagan and Sotomayor seem firmly in the Phelps camp.

Ginsburg was “up in the grill” of Snyder’s attorney, Sean Summers, from the get-go (the term is in quotes because, oddly enough, Margie Phelps used that term three times in her oral argument to describe the difference between, on the one hand, protected speech and, on the other, unprotected IIED or “fighting words”). Ginsburg especially seemed unconvinced that protesters who complied with every time, place and manner restriction put upon their speech could later be held liable.

Justice Kagan highlighted the portion of Hustler quoted above. I think she is concerned about subjectivity and I think she’s not willing to impose liability in this case.

Justice Sotomayor also seemed skeptical about the public figure/private figure distinction. She noted at one point:

[U]nder what theory of the First Amendment would we do that? What [Supreme Court decision] would stand for . . . the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Likely for Phelps

Justice Breyer is a little tougher. Despite being tagged as a “liberal” member of the Court, he isn’t rock solid on First Amendment protections. But he’s still pretty good. For me, the key moment occurred when he seemed to be seeking a way to protect this speech by allowing some liability but not where matters of public concern are involved. (You can find this moment at pages 45-46 of the transcript.)

But Justice Scalia was the real revelation to me. As usual, he was an active questioner, launching into both attorneys. But everything crystallized – and I think the case might have tipped to Phelps – in this exchange during Summers’s rebuttal:

MR. SUMMERS:  The court – the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not. There was a comment earlier that all the signs were presented. Well, all the signs were presented by the Respondents, not by Mr. Snyder. So we –

JUSTICE SCALIA:  I guess that that kind of a call is always necessary under – under the tort that you’re – that you’re relying upon. The conduct has to be outrageous, right?

MR. SUMMERS:  Correct.

JUSTICE SCALIA:  That always requires that kind of a call, unless the tort is unconstitutional, as applied to all – all harm inflicted by words.

I’m sensing that Justice Scalia is concerned that Snyder’s position requires consideration of the message’s content in determining whether there is outrageousness. He’s always been concerned with regulating speech based on a particular viewpoint, yet that’s what Mr. Summers seems to be advocating. There’s no way that Scalia will agree with this. If I’m right, he definitely provides what could be the crucial vote for Phelps.


Justice Thomas. The guy didn’t ask a single question (again). Sometimes he loves the First Amendment, but sometimes he comes way out of left field, especially in cases where he can view himself as the protector of a “weak” constituency. (Check out his concurring opinion in the “Bong Hits for Jesus” student speech case in which he went so far as to advocate a return to the 19th Century, when schools basically governed every aspect of their students’ lives.) His paternal streak might say that the government should step in where funerals are involved.

It’s my uncertainty about Thomas’s vote that keeps me from a conclusive prediction as to the vote split – 5-4 or 6-3 – but, if my other big guess (that would be Justice Scalia) pans out, the Swami sees a victory for Phelps and, more particularly, the First Amendment.