Freedom of Speech and Fred Phelps

I fielded a question about Fred Phelps recently on Facebook that led me to write this post.  I've had several questions about the First Amendment lately, so I thought I'd explain a bit more about "free speech" here on MOMocrats.

I'll try to keep this free from legalese, which also means I'm going to condense much of the factual and legal background and eliminate the use of endless citations. Normally, almost everything I write in a legal brief is followed by a citation of law or authority.  This is not a legal brief.

The Question:

On Facebook, my milfam friend Carrie asks:

So the Marine's father who sued Fred Phelps has been ordered to pay Phelps' court costs. Now maybe you know but does the constitution protect people to protest ANYWHERE they want, or just their right to protest?

Background:

Fred Phelps is that fabulous guy from the Westboro Baptist Church who claims to be a "Christian" and travels the country with Hallmark Hall of Fame placards with such lovely quotes as "God Hates Fags," "You're Going to Hell," "Thank God for Dead Soldiers," and my personal favorite, "Semper fi fags."  Classy guy, I know.

Mr. Phelps and his misguided followers decided to protest, along with their lovely signs, at the funeral of Lance Corporal Matthew Snyder, who was killed in action in Iraq in 2006.  His family was understandably displeased.  Al Snyder, Matthew's father, sued Westboro Baptist Church, Mr. Phelps and several members of his family/church (the "Defendants") in federal court in Maryland.  He argued that the members of the Westoboro church invaded his privacy and caused intentional infliction of emotional distress.  Mr. Snyder won almost $11 million at trial.  (This was later reduced to $5 million by the district court.)

Phelps appealed and the Fourth Circuit Court of Appeals reversed the decision of the trial court in September of 2009.  No, Phelps was not represented by the ACLU, but they did file an amicus (friend of the court) brief in support of Phelps, et al.

The case is in the news more recently because Phelps, et al. petitioned the court for costs and the 4th Circuit ordered Mr. Snyder to pay Phelps about $16,000 to cover the costs of the ongoing litigation. 

The Fourth Circuit summed up the two sides quite nicely in their opinion:

Defendants’ rationale was quite simple. They traveled to Matthew Snyder’s funeral in order to publicize their message of God’s hatred of America for its tolerance of homosexuality. In Plaintiff’s eyes, Defendants turned the funeral for his son into a "media circus for their benefit."

The Defendants complied with local ordinances and police directions regarding staying a certain distance from the church.  Mr. Snyder did not see the signs until he later saw a news broadcast with footage of the Phelps family at the Church.

Congress shall make no law...abridging the freedom of speech.

Let's start with something we should all recognize from the Bill of Rights, the First Amendment to the Constitution.  It states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(The First Amendment also applies at the state and local level through the Fourteenth Amendment, in case you were wondering.)  Not all speech is protected by the First Amendment.  It's a balancing act.  Speech that causes physical harm isn't OK.  You also won't be protected by the First Amendment if you decide to say something about an individual that is factually wrong.  (You can't erect a sign in front of your house that says your neighbor is a pedophile unless he actually is.)  However, just because speech is hateful or offensive does not mean that it can be suppressed.  The government can place reasonable "time, place and manner" restrictions on speech but the restrictions have to be narrowly tailored and balance the interests, and rights, of everyone involved.

Here, Mr. Snyder's tort awards could only be upheld if the award was consistent with the Defendants' First Amendment guarantees. See Food Lion v. Capital Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir. 1999).  Speech, even if hateful and offensive, can still be protected speech if it isn't physically harmful or disruptive and it doesn't involve false statements about an individual.

(This is a gross oversimplification of the law here, but I'm trying to spare you the minutiae of the law regarding general speech versus speech clearly directed at an individual. Let's just say there was some debate over whether the signs carried by Phelps et al. were general statements of opinion, such as "God hates America," or specific factual statements aimed at the Phelps family such as "You're going to hell.")

The Fourth Circuit reversed the district court on two issues:

1. The Fourth Circuit explained that the district court erred in permitting some instructions to the jury that allowed the jury to determine something that is an issue of law, mainly whether or not the Defendants' "speech" (signs, etc...) were entitled to Constitutional protection.  The scope of protection afforded under the First Amendment is a legal question, not a factual one.  Juries only decide issues of fact; courts determine issues of law.
2. The signs carried by the Defendants were entitled to Constitutional protection because they "[did] not assert provable facts about an individual, and they clearly contain[ed] imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants [were] concerned."

In other words, because Phelps' signs weren't like the front yard sign about your neighbor's pedophilia, something that can be proved or disproved, they were considered "hyperbolic rhetoric" protected by the First Amendment.

The Fourth Circuit closed with a quote from Judge Hall that I'll share with you:

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. 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."

(citing Kopf v. Skyrm, 993 F.2d 374, 380 (4th Cir. 1993).). The First Amendment may protect some pretty nasty people and some horribly hateful words, but we have to hold our noses and uphold the Constitution.

It's Not Over

Now, lest you think that this is the end of the matter on this subject, let me assure you it's not. 

Snyder has appealed the Fourth Circuit's decision to the Supreme Court and the Court has agreed to hear it.  This generally means the law is not clear, the Circuit Courts of Appeal are not in agreement, or the Supreme Court just thinks it's time to clarify the state of the law. Here, there is no clear split in the case law of the federal circuit courts, but we have to remember that it only takes 4 of the 9 justices to grant a Writ of Certiorari (the petition to the Supreme Court to hear a case).

It could be that the Court wants to clarify the issue I alluded to regarding factual or general speech directed at individuals.  Courts have also tended to allow more restrictions on speech at funerals because the funeral goers are pretty much a "captive audience." The Supreme Court might be ready to expand protections for those who are a "captive audience."  I seriously doubt it though.  Expanding those protections would also expand protections for people arriving at abortion clinics during a protest.  Somehow I can't see the Roberts Court telling abortion protesters they have to back off.

My Two Cents

What about Carrie's question?  Does the Constitution allow people to protest wherever they want?

The answer is no, it doesn't.  Remember, the government can place "reasonable time, place and manner" restrictions on speech.  Many states have passed laws regarding protests at funerals and Congress has placed some restrictions on protests at funerals on federal property.  

In fact, Maryland, where Matthew Snyder's funeral was held, has a restriction on protests at funerals in place.  The Maryland law provides one of the most generous buffer zones in the country, requiring that protesters stay 1000 feet away from the funeral.  Phelps and his followers were complying with local ordinances and state police when they protested at Matthew Snyder's funeral. 

So, as hateful as Mr. Phelps and the members of the Westboro Baptist Church are, they do have the right to peaceably assemble and spread their message of hate.  Like the skinheads and the KKK before them, Phelps is engaging in an activity protected by the First Amendment.

We don't have to like it.  In fact, I must add that I wouldn't be at all disappointed if Mr. Phelps was struck by a meteor falling from the sky.  Or if he encountered 3 huge Marines in a dark alley while holding his "Semper fi fags" sign.  (But then I've never pretended to be a Christian, which is more than Mr. Phelps can say.) But the Bill of Rights that allows me to stand outside my Congressman's office with a sign telling him what I think about health care reform, also applies to people like Fred Phelps at public funerals.

We can only hope Phelps understands the significance of the Constitutional protections he invokes to promote his hateful speech; the Constitution that Lance Corporal Snyder and his comrades in arms have sworn to protect and defend with their lives. 

If there is a God, Mr. Phelps, she is watching you.

And now for the Lawyer Mama Disclaimer: If you think I'm offering you legal advice or that this has established an attorney-client relationship, you're an idiot and you shouldn't be reading my blog. If so, slap yourself in the forehead. Right now! Oh, and I'd like to sell you a bridge in Brooklyn.

Photo courtesy of the Source 4 Politics blog.

This post appeared in somewhat different form on Stephanie's personal blog, Lawyer Mama.

Comments

[Whit]

I'm not a violent man, and I understand everything you've covered here, but I'm pretty sure I wouldn't be able to restrain myself should I happen upon Mr. Phelps. I sleep well knowing that.

[Lawyer Mama]

Whit, you and me both....

[Roger Laird]

Your answer was clear. However, your comments about Christians indicate that you have the same hate in your heart that you blame Phelps with. Phelps does not represent Christians, just as idiot bloggers do not represent all writers. Despite your severe prejudice, I have the right to love God and my fellow man. I wouldn't protest at any funeral, not even yours.

[Lawyer Mama]

Roger - I am pretty sure that you don't get to judge me. You don't know anything about my views on Christianity aside from what I wrote in this post. The only comment I made about Christians is that I don't hypocritically claim to be one in the way that Phelps does. I don't have a problem with Christianity. What I *do* have a problem with are people who claim to be Christians and then act in direct contravention of its teachings.
Let me repeat - I don't have a problem with Christianity, only hypocrites like Fred Phelps who claims to be "Christians." How you found that to be hateful remarks about Christians is beyond me.
Perhaps you should look into the hate in your own heart and apologize for your completely uncalled for remark.