Targeted hate speech and the first amendment: how the supreme court should have decided Snyder.

• Author: Levinson, Rosalie Berger
• Position: Snyder v. Phelps

"When the content and the inherent purpose of speech become immaterial from a legal perspective, freedom of speech may be abused in a manner which contradicts the basic principles of a free society. Speech by hate groups can be utilized to willfully inflict injury on the targets of hate, turning the freedom of speech into a defense of unjust action." (1)

1. INTRODUCTION

   For the past twenty years, the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in the military. (2) The picketing has also targeted the Catholic Church for sex scandals involving its clergy. (3) Fred Phelps, a disbarred lawyer and the church's founder, together with six parishioners/relatives, traveled to Maryland to picket the funeral of Marine Matt Snyder, who was killed in Iraq in the line of duty. (4) In compliance with local law enforcement officers, the picketing took place on public land approximately 1000 feet from the Catholic Church where the funeral was held. (5) For about thirty minutes before the funeral began, the picketers displayed signs declaring "Thank God for Dead Soldiers," "God Hates Fags," "America is Doomed," "Priests Rape Boys," and "You're Going to Hell," among other hateful messages. (6) Although Matt was not gay, he was Catholic and the funeral was held at a Catholic Church. (7) Matt's father knew that Phelps and his followers were at the main entrance of the church property, so he rerouted the procession. (8) He still saw the tops of the picketers' signs, but admitted that he did not know what was written on them until he watched a news broadcast later that evening. (9)

   Adding insult to injury, shortly after the funeral, Phelps's daughter posted a message on Westboro's website denouncing the Snyders and asserting that they taught their son to defy his Creator, to commit adultery, and to follow the Roman Catholic Church, which "support[s] the largest pedophile machine in the history of the entire world." (10) The posting proclaimed that Matt's parents "raised him for the devil." (11) The Supreme Court, however, addressed only the question of whether a tort action could be brought based on the funeral picketing. (12)

   Mr. Snyder sued Phelps and the Westboro church for intentional infliction of emotional distress (IIED), intrusion upon seclusion, and civil conspiracy. (13) As to the first claim, the district court carefully instructed the jurors that they could find in favor of Mr. Snyder only if they determined that: (1) the defendants' actions were directed specifically at the Snyder family, (2) the Westboro Church's speech would be highly offensive to a reasonable person, (3) the speech would be viewed as extreme and outrageous, and (4) the speech was so offensive and shocking as not to be entitled to First Amendment protection. (14) The jury found for Mr. Snyder on all three claims and held the Westboro Church liable for $2.9 million in compensatory damages and $8 million in punitive damages. (15) The district court remitted the punitive damages award to $2.1 million, (16) but the Fourth Circuit subsequently reversed the entire judgment, holding that the First Amendment protected the Church's speech. (17)

   The Supreme Court agreed with the Fourth Circuit, holding eight-to-one that the jury verdict could not stand because the First Amendment shielded Phelps and the Westboro Baptist Church from any tort liability for engaging in peaceful picketing on public property on a matter of public concern. (18) Writing for the majority, Justice Roberts stressed that "'speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.'" (19) He asserted that when it comes to speech on public issues, we "'must tolerate insulting, and even outrageous, speech in order to provide adequate "breathing space" to the freedoms protected by the First Amendment.'" (20) He explained that "[a]s a Nation we have chosen ... to protect even hurtful speech on public issues to ensure that we do not stifle public debate." (21) The fact that the speech occurred at a private funeral did not "transform the nature of Westboro's speech," nor did the fact that the Westboro Church chose to target and exploit the Snyder funeral in order to increase publicity for its views. (22) Ultimately, the Court concluded that Westboro's speech was entitled to "special protection" under the First Amendment and that the standard of outrageousness used to impose tort liability posed too great a danger that a jury would punish Westboro for its views on matters of public concern. (23) Thus, no recovery was permitted.

   In addition, the Court ruled that Snyder could not recover for the tort of intrusion upon seclusion. (24) It refused to apply the captive audience doctrine to insulate family members at a funeral, at least absent evidence that the picketing interfered with the funeral service. (25)

   The issue of targeted hate speech is not new. (26) One of the most notorious cases arose thirty-five years ago when a group of neo-Nazis, led by Frank Collin, sought permission to hold a demonstration in Chicago. (27) The Chicago Park District resurrected an old, unused ordinance that required a sizeable bond be posted for the privilege of speaking in Marquette Park. (28) Angered by Chicago's actions, Collin looked for a new site for his group's demonstration, and, in 1977, he decided to focus on Skokie, Illinois because of its large Jewish population comprising almost fifty percent of the village, or 30,000 residents out of Skokie's total population of 70,000, including between 800 and 1200 Holocaust survivors. (29) Like Phelps, Collin's intent was to exploit his highly vulnerable victims with outrageous speech in order to attract maximum media publicity. He admitted that he "planned the reaction of the Jews. They are hysterical[;].... We used the First Amendment at Skokie." (30)

   Collin's group began the verbal assault by distributing thousands of leaflets in the North Shore area, including Skokie, which featured a hideous picture of a swastika with hands that reached out to choke a stereotypical caricature of a Jew. (31) The words on the pamphlet, "emblazoned in large bold-faced type," ominously announced: "WE ARE COMING!" along with smaller print stating that the Nazis targeted the North Shore because "where one finds the most Jews, there one will find the most Jew haters." (32) The leaflets urged "'fierce anti-Semites' to action." (33)

   In an interview reported by the Chicago Sun-Times, Frank Collin stated that he fully anticipated the Jewish reaction--namely outrage and hysteria--and he explained:

   We want to ... get the fierce anti-Semites who have to live among the Jews to come out of the woodwork and stand up for themselves.... I hope [the survivors are] terrified. I hope they're shocked. Because we're coming to get them again. I don't care if someone's mother or father or brother died in the gas chambers. The unfortunate thing is not that there were six million Jews who died. The unfortunate thing is that there were so many Jewish survivors. (34) Skokie responded by enacting three ordinances: (1) a permit/insurance bond requirement, (2) a military uniforms prohibition, and (3) a racial slur law, which barred the distribution of materials that promote or incite racial or religious hatred. (35) The Village also brought a lawsuit in state court to enjoin the march on grounds that Nazis appearing in uniform, displaying their swastikas in the Skokie neighborhood was likely to inflict psychological trauma. (36) Experts described the injury as "menticide"--the intentional infliction of emotional harm through the process of resurrecting the emotional and psychological responses to the original Holocaust. (37) Although the trial court issued an injunction, the evidence did not persuade the Illinois Supreme Court and the court found it insufficient to justify the suppression of speech. (38) The court determined that display of the swastika was protected political speech, not unprotected "fighting words." (39)

   In a second suit, this one filed by the Nazis in the Northern District of Illinois, the court similarly rejected the fighting words doctrine as a defense to the Skokie ordinances. (40) Like the Supreme Court in Snyder, the federal appellate court in Chicago affirmed that the expression of ideas cannot be curtailed simply because words are found to be offensive to some listeners. (41) The Seventh Circuit refused to stop the march. It found the insurance bond, military uniform prohibition, and racial slur laws to be unconstitutional and ordered the Village to immediately provide a permit to Frank Collin. (42)

   Both state and federal tribunals rejected the Village's argument that the Nazis were invading the privacy of Jewish residents by targeting their neighborhood. The judges reasoned that the residents could avoid confrontation by simply staying away from the demonstration at the Town Hall. (43) In short, the courts determined that the emotional trauma of having Nazis march in the neighborhood of those who had experienced the horrors of the Holocaust did not trump the First Amendment.

   The Jewish Defense League (JDL), among other groups, responded by announcing that they would hold a counter-demonstration and that "the streets of Skokie will run with Nazi blood." (44) Ultimately, it was the JDL's threat, not judicial intervention, that persuaded Frank Collin to cancel the Skokie march. (45) Instead, the Nazis demonstrated in Marquette Park and at the Federal Plaza in Chicago in the summer of (1978). The counter-demonstrators significantly outnumbered the small group of Nazis and massive police protection was required to control "several burgeoning fights." (46)

   What these two incidents have in common is that targeted, outrageous hate speech was afforded First Amendment protection despite...