The Westboro Baptist Church and its bizarre octogenarian pastor, Fred Phelps, won a major victory at the Supreme Court in March. In an 8-1 decision, the Court reversed a multimillion-dollar award to the family of Marine L.Cpl. Matthew Snyder, who was killed while serving in Iraq.
In 2006, Westboro members showed up outside the fallen soldier’s funeral in Westminster, Maryland, with their usual signs: “God Hates Fags,” “Thank God for IEDs,” “You’re Going to Hell.” Subsequently, Matthew’s father brought suit for intentional infliction of emotional distress, defamation, and other torts. The jury found that Westboro’s actions were outrageous and awarded $2.9 million in compensatory damages and $8 million in punitive damages.
Westboro appealed, arguing that the First Amendment insulated it from state-law claims. The Richmond-based Fourth Circuit Court of Appeals agreed, and the Supreme Court affirmed.
Writing for the Court, Chief Justice John Roberts recognized that the Westboro signage fell “short of refined social and political commentary,” but he emphasized that Westboro was raising “matters of public import.” This was not an attack on the Snyder family or Matthew, the Court reasoned—Snyder was not a homosexual, a fact recognized even by Westboro—but an effort to further public debate on homosexuality and other moral issues. Roberts also noted that the picketing occurred in a public place adjacent to a public street.
Justice Samuel Alito, the lone dissenter, rejected the Court’s characterization of the picket as a general commentary on public issues. He emphasized a Westboro website posting addressed to the Snyder family. Westboro accused the family of raising Matthew to serve Satan and teaching him “to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity.” They further blamed the parents for permitting Matthew to join the Marine Corps “to fight for the United States of Sodom.”
Thus, Alito found that the protest was not a discussion of national issues but an attack on a family simply trying to bury their dead son in peace.
Only in modern America—where every issue is a national issue—would this case be decided by the Supreme Court on First Amendment grounds. The First Amendment prohibits Congress from making laws that abridge “the freedom of speech” but is now applied even to state common-law causes of action between two private parties. The case in question was not captioned United States v. Westboro or Maryland v. Westboro. The plaintiff was the Snyder family, and the defendants Fred Phelps, two of his attorney daughters, and the church in its corporate capacity. After hearing evidence, the jury simply determined that Westboro engaged in intentional, outrageous conduct that caused Matthew’s father severe emotional distress. As a matter of law, this suit is no different from the driver of Car A suing the driver of Car B for injuries resulting from Car B’s alleged running of a red light. The Framers’ First Amendment is not implicated.
Although it does not affect the Snyder case, Justice Roberts did note that states and localities may enact reasonable time, place, and manner restrictions on funeral picketing. For such regulations to pass constitutional muster they must serve a government interest unrelated to the suppression of a particular message, be narrowly tailored to serve that interest, and leave open ample alternatives for the means of communicating that message.
Because funerals can be an emotional time for family and friends, there is a heightened danger that a message targeting the deceased or his family will lead to violence. Accordingly, a state could require a large buffer area between the protestors and the ceremony. Legislation might also bar picketing during, and even one hour before and after, the funeral.
Under such reasonable restrictions, groups like Westboro could still express their sentiments on homosexuality, foreign wars, and sin in general. As pointed out by Justice Alito, there are many venues where Westboro could have communicated these messages outside of the actual funeral ceremony. For example, rather than attending the Snyder funeral, Westboro could have chosen to stage their protest at the U.S. Capitol, the Maryland State House, or any of the more than 5,600 military recruiting stations across the country. Alternatively, Westboro could have simply waited until the funeral was over and then displayed their signs.
Numerous states have enacted laws governing funeral picketing, and Westboro will surely return to federal court to challenge them. Westboro might have some good arguments against the statutes, but those arguments should be addressed to the state legislatures passing the laws and the state courts adjudicating the laws.
Instead, we will be treated to federal judges reviewing local ordinances aimed at keeping the peace and allowing the dead a quiet interment. This is hardly a good use of federal resources and will ultimately provide the Westboro cult with more of the publicity it craves.