Fred Phelps

  • March 22, 2011
    Guest Post

    By Anthony Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
    In an opinion framed in terms of the majestic First Amendment principles of informed decision-making and debate on matters of public concern, the Supreme Court in Snyder v. Phelps ruled that the First Amendment protects picketing that targeted the funeral of Lance Corporal Matthew Snyder, killed in action in Iraq. The pickets were members of the Westboro Baptist Church, who chose Matthew's funeral to generate media attention for their message that God killed Matthew Snyder "in shame, not honor" because his parents and America tolerate homosexuality, divorce, and adultery. Under First Amendment cover, the Court ruled that this was speech on matters of public concern and was immune from state tort liability, however personally painful to the family of the deceased.

    In 2007, Westboro's founder, Fred Phelps, and several members of his family traveled from Kansas to Maryland to picket Matthew's funeral. Their signs carried their message: "God Hates Fags," "Thank God for Dead Soldiers," "You're Going to Hell," and "God Hates You." Westboro targeted Matthew Snyder, a private figure whose views on these issues were unknown, for the purpose of generating a national audience for their message. In the process Westboro hijacked the narrative that would accompany the Snyder family's burial of their son. Unfortunately, the theft of Matthew's memory by Westboro did not end with the publicity generated by the funeral picketing. Following the funeral, Westboro posted an online account of the meaning of their funeral picket, a self-described "epic" entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants Connect the Dots!" In this "epic," interspersed among lengthy Bible quotations, Westboro denounced Matthew and his parents by name:

    "Mr. and Mrs. Snyder ... raised him (Matthew) for the devil.

    "Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity...They also, in supporting Catholicism, taught Matthew to be an idolater."

    Albert Snyder, Matthew's father, filed a lawsuit for damages against Westboro and the Phelps, claiming that this campaign to demonize the Snyders during a time of grief and vulnerability inflicted emotional distress and invaded their privacy. A federal district court jury found the defendants liable for three torts: intentional infliction of emotional distress (IIED), intrusion upon seclusion, and civil conspiracy, awarding Snyder $2.9 million in compensatory damages and $8 million in punitive damages. The trial court reduced the punitive damages to $2.1 million, but otherwise denied Westboro's post-trial motions.

    Westboro appealed to the Fourth Circuit, which reversed. The circuit court concluded that Westboro's speech, including the Web site epic, was protected by the First Amendment as speech on matters of public concern. A majority of the three judge appeals' court panel ruled that Westboro's personal attacks on the Snyders were made in the context of expressing its religious opinions on controversial issues of broad public interest that could not reasonably be interpreted as expressing verifiable facts about Albert Snyder. As such, according to the Fourth Circuit, this public-concern speech could not be penalized by any form of state tort liability.

    In an opinion by Chief Justice Roberts, an eight Justice majority of the Supreme Court affirmed the Fourth Circuit, but only after limiting the scope of its ruling to the funeral picketing. The Court refused to consider the online epic, claiming that Snyder had failed to include the epic within the scope of his petition for certiorari. Dissenting Justice Alito referred to the Court's refusal to consider the epic as "strange," pointing out that the epic was "not a distinct claim but a piece of evidence that the jury considered in imposing liability." Agreeing with the Fourth Circuit that the epic could not be divorced from the general context of the funeral message, Alito chastised the Court for not making an "independent examination of the whole record" as required when appellate courts review cases raising First Amendment issues.

  • March 2, 2011
    The over-the-top anti-gay group called the Westboro Baptist Church convinced a majority of the U.S. Supreme Court that its speech aimed at tarring gays, Jews, Catholics and American soldiers is protected by the First Amendment.

    In an 8-1 opinion issued this morning, the high court led by Chief Justice John Roberts found that the content of Westboro's speech "plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.'"

    For decades Fred Phelps and his tiny Kansas-based church, made up largely of his relatives, have traveled the country initially targeting the funerals of persons who had died of AIDS with signs reading "God Hates Fags." Eventually after antiviral drugs helped, in this country, to lessen the number of AIDS-related deaths, Phelps and his family turned to protesting funerals of soldiers, and with two American wars, the opportunities to amplify their vitriol again increased. According to its website "," Phelps and his family picket funerals of soldiers as part of a campaign attacking America for allegedly being tolerant of gays. Beyond posting invective on its web site, the small group travels the country to hoist signs at soldiers' funerals reading "God Hates the USA," and "Semper fi fags." When Phelps and his family brought their act to a Maryland funeral of Marine Lance Corporal Matthew Snyder, his father, Albert lodged a lawsuit against the group and won a jury verdict of $2.9 million in compensatory damages and $8 million in punitive damages. The jury verdict was overturned by an appeals court, citing First Amendment protection for Phelps.

    Writing for the majority in Snyder v. Phelps, Roberts said the content of Westboro's messages "may fall short of refined social or political commentary, 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," and ultimately protected by the First Amendment. "Such speech," Roberts wrote, "cannot be restricted simply because it is upsetting or arouses contempt."

    Justice Samuel Alito was the only member to dissent. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote.

    Alito continued that Phelps' band has a freedom to "write and distribute books, articles, and other texts," and disseminate its commentary in other public ways, such as posting its commentary on its web site.

    "It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate," Alito said.

    Alito also questioned the majority's conclusion that the Phelps outfit was engaging in speech of public concern. He wrote that evidence showed that the group went "far beyond matters of public concern," and "specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern."

    Tom Goldstein, founder of SCOTUSblog provides some initial reaction to the opinion, noting:

    The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the "time, place, and manner" of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals' decision, did not call such statutes into question.

    Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.