To Secure These Rights: The Supreme Court and Snyder V. Phelps

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I.   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)

II. 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. …