Hate Speech is Still Free Speech, Even Though it Sucks

By Heather Diersen

This week the U.S. Supreme Court issued a ruling in Snyder v. Phelps et al. that extended First Amendment protection against tort liability for the picketing of Westboro Baptist Church (“WBC”) and its founder, Fred Phelps at the funeral of a Matthew Snyder. Snyder was a Marine killed in the line of duty in Iraq. Upon learning of the decision I thought: “it sucks when free speech protects hate speech, but free is free.” However, after skimming the opinion, I was shocked to find I (kind-of) agreed with (gasp) Justice Alito’s dissent.

Keeping in mind this case was about civil penalties, specifically intentional infliction of emotion distress, not criminal penalties, I question the Court’s application of the “public concern” test. The opinion states that the First Amendment can be used as a defense in a civil suit if the speech addresses a “public concern.” The test to determine a “public concern” looks at three factors: content, form, and context. I think the Court missed the boat on context and form. The Court concluded that the context of the funeral was chosen merely for publicity and the jury’s finding that the picketing was “outrageous” could not overcome the “special protection” afforded to WBC. The Court reasoned there was too great of a danger that the jury was punishing the WBC for its views on a matter of public concern. I respectfully disagree. A jury (carefully chosen in voir dire) likely did not all agree or disagree with Westboro’s statements. The elements of intentional infliction of emotion distress are: (1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. The jury’s “punishment” was not against the protected speech, but for the outrageous action specifically directed at the family. WBC took its speech out of the “public” concern when it chose a private forum and directed its actions toward a specific individual (WBC issued a press release stating it was going to picket Snyder’s funeral because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor-for a fag nation cursed by God…Now in Hell – sine die.” See Alito’s dissent). Note, the Court did not really address the “form” factor.

Had the picketing been located at a cemetery at random, perhaps the “context, form, and content” test would pass and the speech would be protected from tort liability. But it was directed at a private funeral of a specific individual. I question whether the test was properly applied in this case or if a narrower scope of the First Amendment should be extended when used as a defense against civil penalties. (See Breyer’s Concurring Opinion).

The Court has ruled and yes, hate speech is still free speech. Thankfully Maryland now has a law restricting funeral picketing (which is hopefully reasonable in its time, place, and manner restrictions). And one can hope that, despite this great disappointment to the Snyder family, they may take ironic comfort in the fact that their son bravely fought and died on behalf of American – for all of its rights and freedoms.