To secure these rights: the Supreme Court and Snyder v. Phelps.

• Date: 22 September 2011
• Author: Fishman, Ethan

1. Introduction II. Snyder v. Phelps: The First Amendment and Protected Speech III. Freedom of Expression and the Supreme Court IV. American Origins of Content-Neutral Jurisprudence V. Philosophical Perspectives on Free Speech VI. Conclusion I. INTRODUCTION

   Historically, the United States Supreme Court has taken a morally neutral approach towards issues involving freedom of expression. (2) Instead of evaluating the content or substance of the views being expressed, the Court has relied primarily upon formalistic time, place, and manner considerations to guide its judgment in such cases. (3) The rationale, as well as the advantages and disadvantages of this judicial approach are vividly illustrated in Snyder v. Phelps--the Court's March 2011 ruling that patently hateful protests at military funerals are protected by the First Amendment of the Constitution. (4)

   Matthew Snyder was a heterosexual twenty-year-old, Marine Corps Lance Corporal who died fighting for his country in Al-Qa'im, Iraqi Fred Phelps, Sr. is the founder of the Westboro Church, a Baptist congregation in Topeka, Kansas composed mainly of his extended family. (6) The Westboro Church is defined by hatefulness. Included among the targets of its rancor are homosexuals, the United States for tolerating homosexuals, the American military for defending the United States, and anyone or any religion that does not completely share its dogma. (7) It especially loves to hate Catholicism. (8) The church has chosen to publicize its messages by protesting at hundreds of funerals over the past twenty years. (9) On March 10, 2006, Westboro congregants picketed Matthew Snyder's funeral at a Catholic cemetery in Westminster, Maryland, carrying placards that read "Thank God for Dead Soldiers," "God hates you," and "You are going to hell." (10)

   After a civil suit was brought by Albert Snyder, Matthew's father, a Federal District Court awarded Snyder millions of dollars in compensatory and punitive damages against Westboro, finding that the church intentionally caused him psychological strain and distress. (11) When the Fourth Circuit Court of Appeals subsequently reversed the judgment, (12) Mr. Snyder appealed to the United States Supreme Court, which, on March 2, 2011, issued its 8-1 ruling. (13) Writing for the majority, Chief Justice John G. Roberts, Jr. affirmed the Circuit Court's decision. (14) Justice Robert's argued that Westboro's protests are clear examples of public speech, which occupy "the highest rung of the hierarchy of First Amendment values." (15) While Westboro's messages "may fall short of refined social or political commentary," he admitted, "the issues they highlight--the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy--are matters of public import." (16)

2. SNYDER V. PHELPS: THE FIRST AMENDMENT AND PROTECTED SPEECH

   Albert Snyder had successfully demonstrated to the District Court that Westboro "intentionally or recklessly engaged in extreme and outrageous conduct that caused [him to] suffer severe emotional distress." (17) However, according to Chief Justice Roberts' interpretation of the First Amendment, "outrageousness" is irrelevant to the prosecution of freedom of speech cases as it represents "a highly malleable standard" that defies definition in objective terms. (18) "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and--as it did here--inflict great pain," Chief Justice Roberts concluded; (19)

   On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case. (20) Of special significance to Chief Justice Roberts was that the Westboro congregants had "the right to be where they were" because they followed legal procedures. (21) They picketed on a public street 1,000 feet from the funeral, obeyed the instructions of police, and protested nonviolently. (22) "A group of parishioners standing at the very spot where Westboro stood, holding signs that said 'God Bless America' and 'God Loves You' would not have been subjected to liability," the Chief Justice maintained. (23) Rather, "[i]t was what Westboro said that exposed it to tort damages." (24)

   In sum, Justice Roberts stated that Westboro could not be held legally culpable for the severity of Albert Snyder's anguish because of the manner in which it conducted its protests: it deferred to the police and addressed public, not personal, issues that are shielded from government interference by the First Amendment. (25) Justice Stephen G. Breyer joined the majority but wrote separately in an apparent attempt to limit the scope of Justice Roberts' language. (26) Other types of expression such as internet postings, Justice Breyer advised, might not qualify for similar constitutional protection. (27)

   The lone dissenter, Justice Samuel A. Alito, Jr., took a more substantive approach to the case. (28) He challenged Justice Roberts' determination that Westboro's verbal attacks on Matthew Snyder were impersonal. (29) It targeted him because he was a Catholic soldier, Alito argued. (30) Since the church knew "the media is irresistibly drawn to the sight of persons who are visibly in grief," Alito asserted that the church shrewdly calculated that the more psychological pain it inflicted on the Snyder family, the more publicity it would be able to obtain for its hateful views. (31) In support of his argument, Justice Alito pointed out that Westboro only canceled its threat to picket the Catholic funeral of Christina Taylor Green, the little girl murdered by a crazed gunman in Tucson, Arizona, when a radio station agreed to give it free air-time. (32) "In order to have a society in which public issues can be openly and vigorously debated," Justice Alito concluded, "it is not necessary to allow the brutalization of innocent victims...." (33)

3. FREEDOM OF EXPRESSION AND THE SUPREME COURT

   This is not the first time the Roberts Court has taken a formalistic or situational position on freedom of expression cases. (34) In 2010, it overturned federal laws that limit the amount of money corporations can spend on political campaigns (35) and that ban depictions of animal cruelty. (36) Past courts have chosen the formalistic route to overturn policies regulating expression as well. (37) In the 1949 case of Terminiello v. Chicago, for example, a majority of the justices ruled as unconstitutional a $100 fine imposed by the city on a suspended Catholic priest, known as the "Father Coughlin of the South," for delivering a virulent speech in praise of fascism and racism at a local auditorium. (38) Coming as they did on the heels of a world war in which countless Americans were killed and wounded by fascists, Terminiello's rants were so incendiary that, despite the presence of a large contingent of Chicago police, order could not be maintained. (39)

   Twenty-nine years later, in National Socialist Party v. Village of Skokie [hereinafter "Skokie"], the Court again applied the content neutral doctrine to loathsome fascist ideology. (40) After failing in their initial bid to stage a demonstration in Chicago's downtown Marquette Park, a group of American Nazis planned a march in suburban Skokie. (41) The swastika-emblazoned Nazis chose Skokie because of its large population of Holocaust survivors, whose very existence they held in contempt. (42) When the municipal government of Skokie enjoined the march and a succession of Illinois State courts refused to stay its injunction, their decision was appealed to the United States Supreme Court, which criticized the Illinois court for violating the Nazis' First Amendment rights. (43) On remand, state jurists promptly reversed themselves and ruled in favor of the marchers. (44)

   As the Snyder, Terminiello, and Skokie cases demonstrate, procedural jurists come in all political stripes. (45) Although Justices Roberts, Scalia, Thomas, Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan rarely agree on matters such as government regulation of the economy, for example, in Snyder they were unanimous. Whereas Roberts is considered to be a conservative, Justices William O. Douglas and John Paul Stevens, who delivered the majority opinions in Terminiello and the "Skokie Affair," were liberals. (46) In words very similar to Chief Justice Roberts, Douglas asserted, "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." (47)

   The dissenters in Snyder and Terminiello also thought alike. (48) Justice Alito's criticism of the Court in Snyder for ignoring the immorality of Westboro's behavior in favor of a dedication to virtually unlimited freedom of expression was mirrored by Justice Robert H. Jackson's objection in Terminiello. (49) "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom," Justice Jackson warned, "it

   will convert the constitutional Bill of Rights into a suicide pact." (50)

4. AMERICAN ORIGINS OF CONTENT-NEUTRAL JURISPRUDENCE

   In American history, the intellectual origins of content neutral jurisprudence can be traced back to our founding document, the Declaration of Independence. (51) Based upon the social contract theory, that purports to explain the true origin and purpose of government, the Declaration posits the existence of a metaphorical state of nature, predating civil society, in which individuals enjoy boundless natural rights conferred by God. (52) When their rights come under attack, these formerly completely free...