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Funerals, Fire, and Brimstone

Albert Snyder won a jury verdict and a substantial monetary judgment against the Westboro Baptist Church after they protested at his son's funeral. The Fourth Circuit reversed. When the Supreme Court hears Snyder v. Phelps in October of 2010, the contours of the First Amendment's Freedom of Speech guarantee could be redefined. Cardozo Law Review de novo is pleased to present a collection of articles from a number of leading scholars who question what the Supreme Court could do with the case, and suggest what it should do.

The Road Not Taken: How the Fourth Circuit Reached the Right Result for the Wrong Reason in Snyder v. Phelps

J. Joshua Wheeler

As a father grieving the loss of a son who sacrificed his young life in service of his country, Albert Snyder deserves only sympathy and compassion. Unfortunately, members of the Westboro Baptist Church (hereinafter “the Phelps”) expressed themselves in a manner that only added to the emotional anguish that Mr. Snyder has endured. In the limited context of the law, however, Mr. Snyder’s suffering is tangential to the fundamental question of Albert Snyder v. Fred Phelps, et. al.: Did the Phelps cause Albert Snyder to suffer the specific torts of Intrusion Upon Seclusion and Intentional Infliction of Emotional Distress (IIED)?

Freedom of Speech and the Intentional Infliction of Emotional Distress Tort

Eugene Volokh

     The defendants’ speech in Snyder v. Phelps is uncommonly contemptible. But many more ideas than just the Phelpsians’ would be endangered if the Court allowed the intentional infliction of emotional distress tort to cover the expression of offensive ideas.
     Many statements might be labeled “outrageous” by some judge, jury, university administrator, or other government actor. Publishing the Mohammed cartoons outrages millions. So does burning an American flag. So might stepping on a Hamas flag, which contains a passage from the Koran.  So might saying that “affirmative action results in a situation where minorities are competing with people who are better prepared to be there” (a statement that could be seen as applying to an offended person personally, as well as to minorities generally).
     So might arguing that a government program director is unfit for a job because she’s not a U.S. citizen. So might arguing in favor of a government policy of retaliating against civilians during wartime. So might harsh, Hustler-v.-Falwell-like ridicule of a university professor, a community activist, or someone who was convicted of a crime but who nonetheless arouses the sympathy of a jury or a university administrator (perhaps because of the political valence of the criminal statute that the person had violated).
     And the speakers might know that the statements are likely to inflict such distress.  If Snyder allows liability for supposedly outrageous statements that recklessly inflict severe emotional distress, then all the speech mentioned above could lead to liability, university disciplinary sanctions, or in principle even jail time (should a state choose to criminalize such speech). And such liability may become especially likely because denying such liability might itself seem outrageous, once liability in Snyder is allowed. Many Muslims, for instance, might be doubly outraged and distressed if the cartoons that so offend them are allowed but the picketing in Snyder is punished: They might be outraged, first, by the cartoons themselves, and, second, by the law’s failure to give their feelings the same protection that the law would give Snyder’s feelings.

Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability

Jeffrey Shulman

The constitutional law on speech-based tort claims is something akin to a doctrinal funhouse. A bewilderment of public and private mirrors, fact and opinion trapdoors, it is law that balances private and public interests in a complicated and ever-shifting calculus. Thus, when I say that the Fourth Circuit got it wrong in Snyder v. Phelps, it is with no little sense of the challenges a court would face to get it right. It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. The court’s reasoning in Snyder follows the lead set out by the Supreme Court in Hustler Magazine v. Falwell, but that was a case with different types of actors, a different type of speech, a different communicative setting, and different policy concerns to consider. The Fourth Circuit failed to give these differences due weight, and took a step too far when it applied New York Times protection to speech undeserving of such constitutional solicitude. The court muddled through the law, illustrating how unfair it can be to apply to private parties doctrine developed to protect public discourse; but it was a muddle of the Supreme Court’s making—and it will be up to the Supreme Court to unmuddle it.
With unfeigned caution, then, I want to make four modest points about the Fourth Circuit’s decision, each of which addresses the need to secure what is purely private from injurious speech.

Two Wrongs Almost Make a “Right”: The 4th Circuit’s Bizarre Use of the Already Bizarre “Milkovich” Case in Snyder v. Phelps

Richard Weisberg

     The Fourth Circuit’s decision in Snyder v Phelps gives a boost to a seriously wrong-headed High Court opinion, now 20 years old: the otherwise under-examined Rehnquist decision in Milkovich v Lorain Journal Co. The Snyder majority—unlike the concurring judge, who would have reversed on non-constitutional grounds—overturns for First Amendment reasons a $5 million judgment awarded after a full jury trial to the bereaved family of an American soldier who had been killed in Iraq. Their claim of intentional infliction of emotional distress had survived dismissal below, and was grounded on the targeting of their son’s memory—including at his funeral and afterwards on line—by a religious group that felt that homosexuals in the military turned all soldiers, even those who died for their country, into godless sinners who are “going to hell.”
     The Snyder majority opinion performs acrobatically. It tries to somersault over at least five relevant Supreme Court cases to find that such outrageous and targeted speech is protected. It strikes its head upon all of those impediments and cannot emerge without being scarred by not only its own analysis but also the inevitable reversal it faces on appeal. Most shocking to the knowledgeable viewer of this defendant-favorable tumbling act is Snyder’s reliance on Milkovich, one of the few plaintiff-favorable First Amendment decisions of the past 20 years. Even the present defendant-favorable Court, epitomized in its recent Citizens United decision, is not going to tolerate the mis-reading and will allow the plaintiff’s judgment to stand, at least with regard to the First Amendment.
     Yet, as often happens when we see in law a wrongful twisting of a wrongful precedent, the Snyder performance should be understood as attempting “to do a great right, [by doing] a little wrong.” The Fourth Circuit endeavors to do no less than retrieve a First Amendment approach to defamation cases that went the way of all flesh in 1974, and then to expand that destroyed precedent to cover cases brought not in libel but in intentional infliction of emotional distress—a separate contitutionalized tort with a separate line of precedents involving public figures, and not ordinarily the instant case’s kind of private plaintiffs. The Fourth Circuit bounces up from the acrobatics, wounded in a noble cause—the attempt to make the public nature of a defendant’s injurious utterance more important than either the private status of the plaintiff or the tort of which he is complaining.

Snyder v. Phelps: Searching for a Legal Standard

Leslie C. Griffin

     The case of Snyder v. Phelps offers an array of legal issues in search of clearer legal standards. The original lawsuit by plaintiff Albert Snyder, father of the deceased soldier Matthew Snyder, against defendants Fred W. Phelps, his Westboro Baptist Church, and other church members for their picketing of Matthew’s funeral and their website’s “epic” account of Matthew’s life, pleaded five tort causes of actions under Maryland law for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. The district court dismissed the defamation and publicity claims. The jury found the defendants liable on the other three theories and awarded plaintiff $2.9 million in compensatory damages and $8 million in punitive damages. The district court remitted the punitive damages award to $2.1 million.
     On appeal, the Fourth Circuit reversed, ruling that the First Amendment required a judgment for the defendants as a matter of law “[b]ecause the judgment [incorrectly] attaches tort liability to constitutionally protected speech . . . .” Preaching the doctrine of constitutional avoidance, however, a concurrence by Judge Shedd concluded that there was insufficient evidence to establish tort liability under Maryland law. There was no intrusion upon seclusion because the defendants never disrupted the funeral service, confronted the plaintiff, called the websites to his attention or intruded upon Snyder’s privacy in any way. Moreover, Phelps’ conduct was not sufficiently “outrageous” to meet the requirements of the tort of intentional infliction of emotional distress. In Maryland, intentional infliction of emotional distress requires the element of extreme and outrageous conduct. Despite the jury’s finding for Snyder on this tort, Judge Shedd concluded that Phelps’ conduct in protesting the funeral “simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law.” Because the defendants had not raised the sufficiency of the evidence claims in their appeal, however, the other judges rejected Shedd’s reasoning, held the appellants had waived the evidence argument, and decided the case on First Amendment grounds.
     Snyder’s petition for a writ of certiorari presented three questions for the Supreme Court to decide:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

The three questions presented and the underlying opinions suggest that the case is about religion, tort law and free speech. Snyder v. Phelps concerns tort law and free speech, and offers the Court an opportunity to clarify the constitutional law of defamation and privacy lawsuits involving speech. But it should not be a case about religion.

Death, Grief, and Freedom of Speech: Does the First Amendment Permit Protection Against the Harassment and Commandeering of Funeral Mourners?

Alan Brownstein & Vikram David Amar

It is often said, albeit sometimes for rhetorical effect, that the First Amendment protects the speech we hate just as rigorously as the speech we value. In some ways, Snyder v. Phelps tests our commitment to this principle as severely as any case in recent memory. There is virtually unanimity among Americans of all religions or political persuasions that the expressive conduct of the defendants directed at the mourners attending a funeral of a soldier killed in Iraq was despicable and contemptible. Indeed, it is hard for us to keep our minds focused on the free speech issues raised by this case given our visceral instinct simply to vent about the defendants’ utter lack of human decency.
Yet the Phelps case does raise important questions about government’s ability, consistent with the First Amendment, to protect individuals who are uniquely vulnerable from hurtful speech at particular times and locations. In this article, we take up the question of whether certain kinds of speech directed at funeral mourners can be restricted without running afoul of constitutional guarantees and, assuming that some limitations on such speech are permissible, whether certain forms of restrictions on speech are more or less constitutionally appropriate ways of accomplishing this goal. Of particular significance, we analogize to and borrow from various lines of authority—residential picketing of abortion provider cases, abortion clinic access cases, hospital patient protection cases, tort cases dealing with the mishandling of human bodies, telephone and other harassment cases, and so-called “compelled speech” cases in which the First Amendment has been held not to permit individuals to be “used” as mere instruments for the speech of others—to suggest that categorical and doctrinal lines are and can be drawn to permit government to reach odious conduct of the kind at issue in Phelps. We point to two specific features of the Phelps scenario—the well-recognized vulnerability of the victims, and the distinctive way in which the speakers disregarded the victims’ essence as autonomous beings and misused the mourners’ torment as means to an end—that would justify some meaningful regulation under existing doctrine.

Holy Headache: Is Bufferin’ an Adequate Prescription for the Rev. Phelps?

Ayesha Khan & Michael Blank

     Marine Lance Corporal Matthew Snyder died for his country in the line of duty on March 3, 2006.  His funeral in Westminster, Maryland, was an occasion for his family to mourn its loss and for a grateful nation to commemorate his service. The funeral was also, however, an opportunity for the Westboro Baptist Church to spread its message of “God’s hatred of America for its tolerance of homosexuality.”  Westboro picketers carried signs reading “God Hates the USA,” “America is doomed,” “Fag troops,” “You’re going to hell,” “God hates you,” “Semper fi fags,” and “Thank God for dead soldiers.”  After the funeral, Westboro persisted in using Matthew’s death as a platform for peddling its vitriol: The Church published on its website an “epic” excoriating Matthew’s parents for “[teaching] Matthew to defy his creator,” “rais[ing] him for the devil,” and “[teaching] him that God was a liar.”
     The members of the Westboro Baptist Church, consisting primarily of relatives of founder Fred Phelps, specialize in picketing various high-profile events and funerals.  Fred Phelps testified that the church has a “duty” to deliver its message of hate “whether [people] want to hear it or not.”  In fulfilling this “duty,” Westboro has picketed the funerals of well-known figures such as Matthew Shepard, Coretta Scott King, Ronald Reagan, William Rehnquist, and “Mr. Rogers.”
     After viewing television coverage of Westboro’s protest, Albert Snyder sued Fred Phelps and other members of the Westboro Baptist Church for intentional infliction of emotional distress and invasion of privacy, claims for which a jury awarded Snyder damages approaching $11 million.  Westboro filed a motion for remittitur, which the district court granted, reducing the award to $5 million.  On appeal, Westboro argued that the First Amendment barred Snyder’s claims.  The Fourth Circuit agreed, reversing the judgment of the district court.  The Supreme Court agreed in early 2010 to hear the case, and will issue a decision by the end of June 2011.
     The Westboro Baptist Church is hardly the first organization to use religious doctrine as a launching pad for hatred and intolerance. Indeed, the texts of all of the world’s major monotheistic religions are open to myriad interpretations, subject to individual readers’ personal values and beliefs. All those interpretations—hateful, loving, and everything in between—coexist in a marketplace of ideas undergirded by the First Amendment’s Free Speech Clause.
     The government’s principal role in that marketplace is to keep the peace. It fulfills that role in a variety of ways: setting “time, place, and manner” parameters for permissible speech; establishing rules for tort liability; and punishing certain speech that oversteps, such as fighting words or threats. In addition, on secular topics, the government may throw its hat into the ring, lending its mighty voice and resources to one side of a debate. On religious questions, however, the government must stay its hand, for the Constitution relegates the advocacy of religious ideas exclusively to the private sphere. So while the government plays an influential role in advancing public debate on a host of secular issues, private citizens and organizations debate religious questions without the government tipping the scale.
     In the view of the Founders and the Enlightenment thinkers from whom they drew inspiration, the debate about religious ideas would be characterized by respect for and tolerance of divergent points of view. Regardless of whether the Westboro Baptist Church’s speech violates legal principles or renders the church liable in a court of law—an issue on which this article does not take a position—the Church’s behavior transgresses well-established rules of human decency, does not comport with the Founders’ vision of proper religious debate, and should be loudly denounced in the court of public opinion.

Understanding the "Christian Nation" Myth

Steven K. Green

One debate that apparently has no ending point is the one over the nation’s religious foundings. As predictable as the first daffodils of spring, religious and legal conservatives periodically raise claims about America’s Christian heritage in their efforts to gain the moral (and legal) high ground in the ongoing culture wars. These arguments take on several forms, from assertions that the Founders relied on a pervasive Calvinist ideology to craft notions of republicanism, to claims that the Founders were all devout Christians and guided in their actions by divine providence.

Conservatives find support for such claims in a host of statements and official actions during the founding period—for example, thanksgiving day proclamations—that allegedly demonstrate a reliance on religious principles in the ordering of the nation’s political and legal structure. According to one writer, “[t]he history of America’s laws, its constitutional system, the reason for the American Revolution, or the basis of its guiding political philosophy cannot accurately be discussed without reference to its biblical roots."

Additional support, although more qualified, comes from historical scholarship documenting the influence of Puritan thought and the democratizing impulses of the Great Awakening (1740s) on the founding generation. Armed with such data, religious and legal conservatives give notice that the accepted interpretation, that the Founders intended to create a secular nation governed by notions of church-state separation, is contestable territory.

These advocates—I will term them “religionists”—are not tilting at imaginary windmills; for more than sixty years, the dominant legal/historical interpretation of the nation’s constitutional founding has been that the Founders intended to establish a high wall of separation between church and state, as Supreme Court Justice Hugo Black insisted in 1947. The model was Thomas Jefferson’s metaphorical Wall and its scripture was James Madison’s Memorial and Remonstrance, not those annoyingly inconsistent actions like the appointment of a chaplain in the first Congress.

The scholarly historical canon maintains that the Founders relied primarily on Enlightenment principles, not religious ones, when fashioning the nation’s governing norms. Lawyer and historian Leo Pfeffer led the way for the “secularist” interpretation in the 1950-60s, to be followed by outstanding scholars such as Leonard Levy, Gordon Wood, Jon Butler and, more recently, Isaac Kramnick and R. Lawrence Moore in their popular book, The Godless Constitution. Leading First Amendment scholar Geoffrey Stone also entered the fray in a 2008 article which asserts that a majority of the Founders held deistic leanings and looked chiefly to Enlightenment principles when constructing the new government.

Although the academy is overwhelmingly committed to the secularist interpretation, a handful of scholars have embraced the religionist argument in recent years, validating the claims of the popular religionist writers. One goal of this scholarship has been to document the diversity in religious sentiment—particularly forms of Protestant orthodoxy—among members of the founding generation, including those in the political leadership. Unfortunately, this otherwise commendable effort too frequently is blurred with corresponding efforts to marginalize the impact of those Founders who held heterodox religious views (Thomas Jefferson, for example). Still, the renewed scholarly attention to the nation’s Christian foundings has attracted the attention of sympathetic judges such as Antonin Scalia and Clarence Thomas, and (infamously) the members of the Texas Board of Education.

Most recently, a third position has emerged in this debate, one that could be termed an “accommodationist” approach. This perspective seeks a middle ground between the previous positions, giving due regard for the Founders’ personal religious piety and their commitment to a public virtue. It asserts that the Founders could be both religious and committed to a moderate scheme of church-state separation. Yet this perspective usually sides with the religionists on issues such as the Founders’ belief in divine providence and their reliance on “higher” norms when conceptualizing legal rights and liberties. And like the religionists, many accommodationists place considerable weight on isolated religious statements and actions by the Founders.

The debate about America’s Christian origins is unwinnable on this level. All sides have their favorite quotations and events that they use to bludgeon the opposition. The result is that readers are forced to choose between competing statements, which usually turns on the reader’s own predilections (for example, is Washington’s “Farewell Address” more representative of attitudes than Madison’s Memorial and Remonstrance?). This is not to say that one side does not have the better argument. Accommodationists raise important points about the Founders’ concerns for piety and virtue, while secularists generally have stronger historical backing about the nation’s intellectual foundations. And I have previously stated my position on this issue: the claim of America’s Christian nationhood is generally a myth. Increasingly, however, I have been led to conclude that this level of the debate misses several larger, more important questions. From where does this claim of America’s Christian foundations arise? How should one approach the historical record? And why does this debate retain its saliency today?

The fundamental problem with this debate lies in how all sides use the historical data and the assumptions they draw from that evidence. Religionists in particular—though accommodationists and secularists are not immune from this temptation—engage in a fair amount of proof-texting. By this I mean the extraction of particular events or statements from their larger contexts for the purpose of proving the essential meaning or inclination of that episode or speaker. James H. Hutson of the Manuscript Division of the Library of Congress describes this practice:

What better way to prove that the Founders were grounded in and instructed by Christian principles than by calling the most important of them to the witness stand and letting them testify in their own words to the importance of Christianity in their lives? All quote book compilers employ this strategy, invariably focusing on Washington, Jefferson, Madison, Franklin, Adams, and a handful of lesser luminaries, culling statements from their writings that attest to the beneficent influence of Christianity on their lives and on the public welfare, and presenting these pronouncements in serial form.

To be sure, Benjamin Franklin, Thomas Jefferson, James Madison, and even Thomas Paine—that “filthy little atheist,” according to Theodore Roosevelt—made several favorable statements about God and Jesus. The significance of such declarations, however, should always be tempered by reference to the larger philosophical themes contained in the works of the individuals: Notes on the State of Virginia (Jefferson), the Memorial and Remonstrance (Madison), and the Age of Reason (Paine). A failing by the secularist side has been to assert that the majority of Founders were deists—and implying this proves their disregard for religion—without explaining the fluidity of that belief system and its adaptability to more traditional religious forms.

In the remaining space, this essay will examine the recurring outlines in the Christian nation debate and the underlying assumptions that accompany the various positions. It will then turn to an often overlooked aspect of the debate: how the Founders and later generations purposefully used religious discourse and imagery in their efforts to legitimize the new nation. This section necessitates an examination into notions of founding myths and their role in establishing a national identity. A final section will discuss why this debate, though irresolvable, is nonetheless important.

Bridge: 5-Card Majors v. 4-Card Majors: Citizens United

David C. Weiss

Bridge is a team game in which teammates subtly exchange information in an effort to play their best “fit” given the cards in their hand. This Commentary implies that Citizens United was similarly a case of two divided “teams” subtly exchanging information with one side trying to manipulate procedural rules to decide the case on narrow, prudential or statutory grounds, while the other side worked the same rules to tee up a major constitutional decision.
The Commentary thus discusses Citizens United from the perspective of a newspaper column discussing one of the oldest debates in contract bridge: whether a player should open the bidding when holding a 4-card major (four hearts or four spades), or should only open with a 5-card major (five hearts or five spades). Analogizing minor suits (clubs and diamonds) to statutory or prudential arguments, and major suits (hearts or spades) to constitutional claims, the Commentary summarizes Citizens United, demonstrating the back-and-forth of the respective “teams.”

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