Snyder v. Phelps: Case of protesting anti-gay messages outside a funeral reaches Supreme Court

The Supreme Court takes up the battle over how the Westboro Baptist Church spreads their message that the nation's tolerance of homosexuality has drawn God's condemnation.
Christina Wells
Enoch H. Crowder Professor of Law at the University of Missouri School of Law
Wednesday, September 29, 2010; 2:00 PM

The case of Snyder v. Phelps will be argued Oct. 6 at the Supreme Court.

It was initiated by Albert Snyder against members of the Westboro Baptist Church, known for promoting their anti-gay messages. Fundamentalist pastor Fred Phelps and his followers picketed at the funeral of his son, Marine Lance Corporal Matthew Snyder, who was killed in action while serving in Iraq.

Church's protests at military funerals a free-speech test for Supreme Court (Post, Sept. 30)

"I believe that it is an important one that could have far reaching effects on the entire framework of free speech law depending on how the court rules. The effects also reach far beyond the parties of this case although it's easy to get wrapped up in the actions of the Westboro Baptist Church and their offensive messages. I don't want to see the nearly uniform dislike of the Phelps cloud what are otherwise important free speech issues," said Christina Wells, Enoch H. Crowder professor of law at the University of Missouri School of Law, in an e-mail interview.

Wells was online Wednesday, Sept. 29, at 2 p.m. ET to argue the case supporting the Phelps side of the case.

Programming Note: For the Albert Snyder arguments, read Snyder v. Phelps: Case of protesting anti-gay messages outside a funeral reaches Supreme Cour.


Christina Wells: Hi. This is Christina Wells. I look forward to answering your questions.


Southern Maryland: First Amendment issues aside, Phelps and his followers are causing much heartache for the families of fallen soldiers. I had hoped that they would go away if the media became disinterested, since they seem to crave attention. Hypothetically speaking, if funeral homes or churches arranged for private security guards to keep the Phelps group away from the funerals, would they be on solid legal ground?

Christina Wells: It likely depends on the area from which the mourners want them excluded. Certainly, the Supreme Court's First Amendment jurisprudence allows private and public landowners to use trespass or breach of the peace laws to exclude unwanted visitors from the funeral ceremony itself. So if the security guards were simply acting to keep the Phelps out of the the church or funeral ceremony, they would be acting well within their rights.

However, it's not clear that a private security guard would have much authority to keep the Phelps from protesting on publicly owned land (such as as sidewalk across the street from a church). These areas are reserved for speakers generally and this tends to be where the Phelps stand when protesting. They don't enter the church or funeral ceremony itself. Usually, they stay some distance away and that is why the issue of regulation of their speech can be so difficult.


Arlington, Va.: There are several limits to free speech (e.g., slander and libel, encouraging a riot). Why would putting limits near funerals be so earth-shattering? As long as the limits were reasonable (x number of feet from the funeral) and all protests were limited, regardless of content, why would this violate the First Amendment?

Christina Wells: Funeral protest statutes that create "bubble zones" regulating where protestors can stand while protesting at funerals generally are not problematic. Over 45 states have enacted such statutes and the question of whether they will survive a First Amendment challenge is primarily in the details - i.e., is the zone they establish too large, etc. Ultimately, however, many of those statutes are going to be constitutional.

This issue in Snyder v. Phelps does not, however, involve such a statute. Mr. Snyder filed a civil lawsuit after they protested claiming that they invaded his privacy and intentionally inflicted emotional distress on him and his family. Unlike funeral protest statutes that regulate ALL protests near funerals, Mr. Snyder's lawsuit raises a serious question as to whether the Court can allow regulation of protestors based on the content of what they say. While the Court has recognized very limited areas in which speech can be regulated based on its content (what it calls "low value" speech), the claims of invasion of privacy and intentional infliction of emotional distress do not clearly fit into those categories given how the facts of Mr. Snyder's case arose.


NYC: There's a saying on the Internet: don't feed the trolls. Let the Phelpses and their ilk say what they like; what they want is attention. Deny them that and they lose their whole raison d'etre. Isn't that the best revenge?

Christina Wells: Certainly, ignoring speech that you find hateful or distasteful is a form of "symbolic response" and one good way to answer the Phelps, one that many have suggested the media take note of.

Another possible response, especially in the Supreme Court's eyes, is that the best solution for "offensive" speech is more speech (or counter-speech). So an out-pouring of support for families of the deceased is one possible option in response to the Phelpses' protests. That way the families know they aren't alone in their grief or outrage. The Patriot Guard is another possible response - a group of people who show up at funerals (invited usually - I think) to show moral support and form a wall between mourners and the protestors. Also, a legitimate form of counter speech.


Maryland: Perhaps this isn't a speech issue, but an intimidation, harassment and stalking issue. I may not have agreed with many politicians or other public individuals but I would never harass and stalk the family on the day of the funeral. Their actions against private citizens, e.g., surviving family members, at a private event crosses the line. So I do not see it as a freedom of speech but a crime against the immediate family.

Christina Wells: The line between speech and intimidation/harassment is often a difficult one to draw. It is certainly possible that protestors or any speaker could shade from communicating into intimidation or harassment. But the act of protesting alone doesn't do that - at least not in the Court's eyes.

Intimidation/harassment are contextual issues and the courts would need specifically to find facts that lead them to believe in each case that protestors were engaging in intimidation and harassment. That may occur in some instances with the Phelps but I've never seen findings to that effect.


Phoenix, Ariz.: Why was George Bush able to have people removed from his rallies and town hall meetings for wearing a T-shirt with a Democratic political message but you can't remove someone being disrespectful at a funeral?

Christina Wells: What President Bush did was likely unconstitutional and has, in fact, been challenged. The cases are working their way through the court systems.

I want to be clear on the fact that the Phelps do not protest AT or IN the funerals. They protest outside of the funeral and generally always obey the existing laws. To many people this may not make a difference as it is disrespectful and odious behavior (and I agree with that assessment).

From a legal perspective, however, the difference is huge. The law can keep them from disturbing a funeral by attending uninvited. Funeral protest statutes can regulate where they stand outside of the funeral and keep noise levels and other disturbances down. But it's not at all clear that the law allows another person to sue the protestors for huge damage awards when the protestors have abided by all local laws and regulations.


What they claim: Because the protesters have an anti-gay slant can families make a case of slander/libel? That is, are the protesters implying the soldier is gay? Defamation of character?

How do they find time and money to travel to all these funerals?

Christina Wells: I can only speak to the first part of your question - where they find the time and money is beyond my knowledge.

Generally, the Phelpses' signs are too general in their statements to be thought of as about particular people. Because they tend to carry the same signs at all of their protests, it is difficult to make a case for libel, which requires a false statement of fact about a particular person.

This was actually an issue in Snyder v. Phelps and the trial court ruled that there was no claim for libel although it ruled in favor of Mr. Snyder on several other issues.


Intimidation and harassment: YELLING to drown out a minister conducting a funeral for a fallen hero is intimidating harassment.

Christina Wells: To my knowledge this is not what happens with the Phelps, who try very hard to avoid being arrested for disruption. Thus, they tend to protest reasonably peacefully.

If it did happen the way you describe, there would clearly be reason to arrest the Phelps for breach of peace.


Our Own Experience With the Phelps...: Good afternoon... Two years ago, when a gay student killed himself at my college campus (strikingly similar to the incident at Rutgers which was reported by the Washington Post), our college campus held a public memorial service. The Phelps showed up. However, there were 400 mourners and only four of the Phelps. The Phelps shouted epithets and held signs but left after only being there for 20 minutes. While the 400 mourners were peaceful, it seems the Phelps became intimidated by a large crowd. I'd much rather see the Phelps leave on their own as they did in this case then have their speech regulated. It is my belief that they will eventually quit their demonstrations when they realized no one really cares what they have to say. Would you agree? Thank you...

Christina Wells: I think you make a very good point about the possibilities & limits of government regulation of speech.

The First Amendment clearly allows some regulation of speech as other readers have noted. But the Court generally is careful to limit the areas in which speech is regulated because it fears the possibility of viewpoint censorship. That fear has led to large areas of speech that are unregulated. We tend to think that's where our discussion of the First Amendment ends - i.e., because the speaker has a "right" to say what they want.

In reality, it might be better to think of the Court has having ceded to us as a public the ability and obligation to discuss these difficult issues amongst ourselves. Government can't always regulate the Phelps but it doesn't mean that we as citizens can't tell them what we think with our own (peaceful, nonviolent) responses to their actions, such as the one you highlight.

It's too easy for us to think that a ruling in favor of the Phelps will end the discussion because they will have the "right" to do what they want. In my view, that's just the beginning of a much bigger discussion that we can have as a community.


Arlington, Va.: Would you believe that a law requiring protestors against any religious ceremony should be kept a set distance away from the religious ceremony?

Christina Wells: I think I would have to know how that law was worded.

If the law actually said "protestors who express views against a religious ceremony" must stay a certain distance away, it would almost certainly be unconstitutional because it only regulates speakers with a certain viewpoint - i.e., anti-religion - and that goes against everything the Court believes re the First Amendment.

But if the law said "any protestor must stay X feet" from a religious ceremony then it could be constitutional as long as the distance isn't too far and the purpose of the law is to prevent disruption. That law is neutral since it doesn't regulate a particular viewpoint and it's purpose is to ensure that an event is able to occur undisrupted.

One can quibble with whether it's better to single out religious ceremonies for protection than other things but the Supreme Court has certainly upheld statutes protecting activities from disruption by protests.


ignoring speech that you find hateful or distasteful is a form of "symbolic response: Only I can NOT ignore speech at my brother's funeral when Phelp's yelling keeps me from hearing that funeral.

Christina Wells: I reiterate, if, in fact, the Phelpses' actions (aside from the content of their message) are so loud, noisy or distracting that the funeral ceremony cannot actually proceed in a normal fashion, then the law already allows their protests to be punished as a breach of the peace.


Washington, D.C.: Isn't there a freedom of association issue (in addition to a right to privacy) with funerals that is equally important to the "free speech" issue being claimed by Phelps?

Christina Wells: Their is a freedom of association issue - you certainly have the right to exclude people you don't want from your funeral ceremony or church.

The Phelps did not attend Matthew Snyder's funeral. By all accounts they stood at least 500 feet away from his funeral ceremony and protested relatively peacefully. The right to associate is not at issue in that instance as Mr. Snyder has already excluded them from the immediate area in which he is associating with others.


Message: Isn't the protester's message more along the lines of "This soldier died as part of God's punishment for America's acceptance of homosexuality"? So in their minds, they aren't protesting the funeral, they're protesting government policies that result in the funeral.

But any kind of protest -- of the war itself, for example -- is simply inappropriate at a funeral.

Christina Wells: Yes - the Phelps aren't protesting the funeral taking place, they are using the funeral taking place as an opportunity to express the view that you point out.

I won't disagree with you as to the disrespectful and odious action of protesting at or near a funeral. Morally, I have no problem with that statement.

For me the question is the extent to which the government can legally regulate it (neutral bubble zones are okay depending on the distance) and whether a lawsuit based upon the idea that offensive messages at a funeral are inherently outrageous is consistent with the First Amendment (not if you want to prevent similar lawsuits based upon offensive speech in other areas in the future).


Ceremonial protection: I'd think a law singling out "religious" ceremonies for protection would fail on separation of church and state grounds. Atheists' funerals would be fair game? A law protecting "ceremonies recognizing the death of a person or persons" might pass muster.

Christina Wells: Could be. Sorry, I was thinking totally "free expression" issues.


Funerals: In my locality, police usher the funeral procession, blocking local traffic while the hearse goes by. Why can't they block off the entire street for traffic control and keep the Phelpses OFF the procession's route?

Christina Wells: They might be able to do that if they kept EVERYONE off the procession route but my sense is that this would be very hard for them to do. Blocking off the entire street for traffic control is very disruptive and costly and probably economically unfeasible. Once anyone is let onto the route, protestors can't be excluded unless there is clearly going to be a huge problem with traffic because of numbers, etc. Even then, you've got to make some accommodations if you can.


Washington, D.C.: I tried to post this in the other chat. I do not agree with what these people do. However, they have very explicitly stated why they do so. There was a documentary from a few years back in which they lay it all out. They believe that the U.S. has fallen from the grace of god because of the existence of homosexuality, feminism, etc. They say that god's punishment for our sinful ways is to kill our soldiers. They think that we will be so saddened by this and realize the implications of our sinful ways that we will turn back to god and reform. Then we will be right again and soldiers will no longer die. The protests AREN'T against the soldiers being laid to rest. They aren't claiming the soldiers are gay. They are saying that god is angry and this is his sign that we need to change. I do not agree with this and am not religious myself. I watched the documentary and while disgusted, found it fascinating that this is the viewpoint they hold.

Christina Wells: I am glad you pointed out the reasons for why the Phelps protest.

This is partly why attempts to regulate their speech are so difficult. Although their speech is presented in possibly one of the most offensive manners ever, it is speech that has a message on a topic that pertains to issues of the day and that is a message that could be of interest to some (although it's not clear how many will be convinced).

Once this is true, the view of their signs is different than simply abusive epithets made for no reason. Their words are hurtful and mean-spirited. But they do exist in part of a larger discourse that makes their speech protected on many levels. Their signs aren't simply threats or fighting words or incitement to violence. It's possible that in certain contexts they could amount to those things but, without specific facts, the default rule is that their speech contributes to public discourse because of the overall intended message.


Washington, D.C.: In the early 1990s, various pro-life groups would protest outside clinics that offered abortions. Sometimes things would get heated and anti-abortion protesters would do things like beg patients not enter the clinics and block their paths, generally creating an unnecessarily stressful experience for people as they went about their business. Are there any similarities to those cases and this instance where protesters are directing their messages to people who are not really engaged in an activity that is public?

Christina Wells: I'm not sure if you are talking about specific instances near D.C. or Supreme Court cases involving anti-abortion protestors but I can give this a try in light of the latter.

There are some analogies (although they aren't perfect) between the Court's anti-abortion protestor cases and the funeral protest situation - that's one reason why many protest groups are keeping such a close eye on this case.

The Supreme Court has upheld some limits on protestors outside of medical clinics. Usually, however, those limits have related to the government's ability to regulate noise levels and harassment. The emotional state of the patients entering or in the clinic relevant to regulating those actions was generally relevant to determining whether those close, physical approaches of a protestor would be perceived as threatening or intimidating in any way.

The anti-abortion protestor cases are relevant in the funeral context because they clearly allow the government to regulate noisy or harassing protestors at funerals. But it's not clear that the Phelpses have engaged in anything like a "close approach" as in the earlier cases. That's where the difference and difficulty lies in describing the Phelpses behavior as "harassing."


Snyder v. Phelps: What do you see as repercussions of the Supreme Court's ruling -- one way or the other? First Amendment issues are always salient and this one is both interesting and emotional. In your opinion, how "strong" is this case -- again, one way or the other? Is there a possible precedent here?

Christina Wells: I think that if the Supreme Court rules for Mr. Snyder it will try VERY hard to limit the ruling only to funerals. The problem is that such a ruling is very hard to limit in the case of a lawsuit suing for damages. That is why such a large coalition of groups filed "friend of the court" briefs on behalf of the Phelps. The fear is that a ruling for Mr. Snyder could open up many speakers (especially any kind of protestor, not just those at funerals) to being sued for intentional infliction of emotional distress simply for saying something offensive. It doesn't matter whether the person suing would win the lawsuit, the fear of being sued would cause people not to say controversial things.

If the Phelps prevail, it does not mean that their speech is completely unregulated. As noted earlier, funeral protest statutes exist in most states and if they engage in speech that is threatening or amounts to fighting words, they can be arrested. But these finding have to be made in each individual case.

It's also possible that the Court will say that Mr. Snyder could sue for invasion of privacy or intentional infliction of emotional distress but only if he shows something like a threat, harassment, etc. in addition. This is effectively what the Court required in Hustler v. Falwell, where it told Jerry Falwell (a public figure) that he could only recover for intentional infliction of emotional distress if he showed an intentional false statement of fact was also made. The Court could apply a similar standard to Mr. Snyder, who is a private figure.

In that sense, both the Phelps and the Mr. Snyder have another opportunity to win their case as the Supreme Could would likely send the case back to the trial court to find whether such additional facts actually happened. I don't think that would be a bad outcome at all.


Arlington, Va.: I noted the peculiar issue of an intentional infliction of emotional distress based on the publication of the offending material on a Web site with no direct mention to the plaintiffs. Given the very high bar required for intentional infliction of emotional distress cases, could the case not have been decided on non-constitutional grounds?

Christina Wells: It is, in fact, very hard to show intentional infliction of emotional distress in general and the facts of this case were not terribly great for Mr. Snyder to fit within the requirements in order to recover.

The case could possibly have been decided without reaching the First Amendment issue. At least one judge in the lower courts made this argument (I thought quite persuasively). A few "friend of the court" briefs also make this argument.

It is always possible that the Supreme Court will decide that it has improvidently granted the appeal and will dismiss it. My sense, however, is that it may want to clarify the constitutional issue on intentional infliction of emotional distress for private figure plaintiffs like Mr. Snyder. That's the only reason I can figure out why it granted the appeal.


Christina Wells: Thanks so much for letting me take part in these excellent questions. I really enjoyed reading your points of view and taking part in this discussion.

Chris Wells


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