LESBIAN/GAY LAW NOTES April 2011 49 U.S. SUPREME COURT HOLDS FIRST AMENDMENT SHIELDS WESTBORO BAPTIST MILITARY FUNERAL PROTESTERS FROM TORT LIABILITY A majority of the Supreme Court of the dismissed Snyder’s claims for defama- public matters was intended to mask an at- United States has held that members of tion and publicity given to private life, and tack on Snyder over a private matter.” Rob- the Westboro Baptist Church, who regu- held a trial on the remaining claims. A jury erts held that Westboro’s message “cannot larly protest military funerals holding found for Snyder on the remaining claims be restricted simply because it is upsetting signs bearing slogans expressing their dis- and held Westboro liable for $2.0 million or arouses contempt” and concluded that approval of America’s tolerance of homo- in compensatory damages and $8.0 mil- the jury verdict imposing tort liability on sexuality, such as “God Hates Fags,” “Fag lion in punitive damages; the trial court Westboro for intentional infliction of emo- Troops,” “Thank God for Dead Soldiers,” later remitted the punitive damages award tional distress must be set aside. and “America is Doomed,” was shielded by to $2.1 million. Westboro appealed to the Justice Roberts also rejected Snyder’s ar- the First Amendment from tort liability for 4th Circuit Court of Appeals, which held gument that he was “a member of a captive causing extreme emotional distress to the that Westboro was entirely shielded from audience at his son’s funeral,” stating that father of an Iraq war veteran when they liability by the First Amendment. Snyder “Westboro stayed well away from the me- protested nearby his son’s funeral, in Snyder petitioned the U.S. Supreme Court, which morial service. Snyder could see no more v. Phelps, 131 S.Ct. 1207 (March 2, 2011). granted certiorari and agreed to hear the than the tops of the signs when driving to Chief Justice John Roberts, speaking case. the funeral… We decline to expand the for the Court, summarized the facts of the Justice Roberts stated that “whether the captive audience doctrine to the circum- case: Fred Phelps, founder of the West- First Amendment prohibits holding West- stances presented here.” In his concluding boro Baptist Church, (“Westboro”) and 6 boro liable for its speech in this case turns statement, Justice Roberts stated “our hold- other Westboro parishioners (all relatives largely on whether that speech is of pub- ing today is narrow… Speech is powerful. of Phelps), became aware of the death of lic or private concern,” stating that speech It can stir people to action, move them to Snyder’s son, Lance Corporal Matthew deals with matters of public concern when tears of both joy and sorrow, and — as it Snyder, who was killed in Iraq in the line it can be “fairly considered as relating to did here — inflict great pain. On the facts of duty. Westboro notified the local law en- any matter of political, social, or other con- before us, we cannot react to that pain by forcement authorities of their intention to cern to the community… or is a subject of punishing the speaker. As a Nation we have picket the funeral, and complied with po- legitimate news interest.” Justice Roberts chosen a different course — to protect even lice instructions in standing non-violently opined that the content of Westboro’s signs a hurtful speech on public issues to ensure at a distance of 1,000 feet from the church “plainly relates to broad issues of interest that we do not stifle public debate. That before and during the funeral while hold- to society at large, rather than matters of choice requires that we shield Westboro ing signs and singing hymns. Snyder and purely private concern” because while the from tort liability for its picketing in this the funeral procession passed within 200 messages “may fall short of refined social or case.” to 300 feet of the protestors, but Snyder political commentary, the issues they high- In a short concurrence, Justice Stephen saw only the top of the signs and only lat- light — the political and moral conduct of Breyer agreed with the Court and joined er learned of the messages printed on the the United States and its citizens, the fate its opinion, but wrote separately to state signs while watching the news. of our Nation, homosexuality in the mili- that he believed that the First Amendment Snyder filed suit in federal court against tary, and scandals involving the Catholic analysis cannot stop after determining that Phelps, his family, and Westboro church clergy — are matters of public import.” the picketing “addressed matters of public under diversity jurisdiction, alleging defa- Justice Roberts rejected Snyder’s argu- concern,” suggesting that the Court’s opin- mation, publicity given to private life, in- ment that the church members mounted a ion does not leave a State “powerless to tentional infliction of emotional distress, personal attack on Snyder and his family, protect the individual against invasions of, intrusion upon seclusion, and civil conspir- stating that there was no pre-existing re- e.g., personal privacy, even in the most hor- acy, state law tort claims. The district court lationship between Westboro and Snyder rendous of such circumstances…, [that the] granted Westboro summary judgment and that “might suggest Westboro’s speech on Court has reviewed the underlying facts in LESBIAN/GAY LAW NOTES April 2011 Editor: Prof. Arthur S. Leonard, New York Law School, 185 West Broadway, NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: [email protected] or [email protected] Contributing Writers: Alan J. Jacobs, Esq., New York City; Bryan Johnson, Esq., New York City; Daniel Redman, Esq., San Francisco; Brad Snyder, Esq., New York City; Eric Wursthorn, Esq., New York City; Kelly Garner, NYLS ’12. Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.nyls.edu/jac ©2011 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755-9021 50 April 2011 LESBIAN/GAY LAW NOTES detail, as will sometimes prove necessary imity to the scene of a funeral should be sexual orientation or disability.” In seeking where First Amendment values and State regarded as a free-fire zone in which other- an injunction against the ban, the students protected… interests seriously conflict, wise actionable verbal attacks are shielded argued that the ban violated their First [and has found that since the] picketing from liability.” Amendment rights, and contended that the was lawful and in compliance with all po- Finally, Justice Alito noted that the statements did not otherwise fall under the lice directions,… could not be seen or heard Court’s brief discussion that the wounds in- “fighting words” doctrine (seeChaplinsky v. from the funeral,… [and because Snyder] flicted by picketing at funerals will be pre- New Hampshire, 315 US 568 [1942]). saw no more than the tops of the picket- vented or at least mitigated by future anti- Earlier in the litigation, the 7th Circuit ers’ signs” the First Amendment protects funeral-picketing laws “is no substitute for had affirmed the District Court’s prelimi- Westboro. the protection provided by the established nary injunction blocking the school district Justice Samuel Alito dissented, stating [intentional infliction of emotional dis- from banning the slogan, in Nuxoll v. In- that “our profound national commitment tress] tort,” concluding that “[a]t funerals, dian Prairie School Dist. #204, 523 F3d 668 to free and open debate is not a license for the emotional well-being of bereaved rela- (2008). Writing on behalf of himself and the vicious verbal assault that occurred in tives is particularly vulnerable…. In order Judges Kanne and Rovner, Judge Richard this case.” Justice Alito disagreed with the to have a society in which public issues can Posner again essentially affirmed all of the majority’s holding, stating that the First be openly and vigorously debated, it is not touchstones in the court’s earlier decision. Amendment ensures that persons have necessary to allow the brutalization of in- Judge Posner reiterated that “Be Happy, “almost limitless opportunities to express nocent victims like petitioner. I therefore Not Gay” is not an instance of fighting their view,” but that “it does not follow, respectfully dissent.” Bryan C. Johnson words and that “[p]eople in our society do however, that they may intentionally inflict not have a legal right to prevent criticism of severe emotional injury on private persons LESBIAN/GAY LEGAL their beliefs or even their way of life,” citing at a time of intense emotional sensitivity by R.A.V. v. City of St. Paul, 505 US 377, 394 launching vicious verbal attacks that make NEWS AND NOTES (1992]. Ultimately, the only way that the no contribution to public debate.” Justice defendants could have permissibly banned Alito suggested that Westboro could have 7th Circuit Reaffirms the plaintiff ’s expression in this case was picketed at the United States Capital, the Constitutional Right of High if they could demonstrate that there was White House, the Supreme Court, the School Students to Wear Anti-Gay a “well-founded fear of disruption or in- Pentagon, or the over 5,600 military re- T-Shirts at School terference with the rights of others” he cruiting stations, 4,000,000 miles of public asserted, citing Sypniewsky v. Warren Hills roads, 20,000 public parks, or 19,000 Cath- On March 1, 2011, the U.S. Court of Ap- Regional Bd. Of Education, 307 F3d 243, olic churches in the United States rather peals for the 7th Circuit affirmed a district 264-65 (3d Cir 2002).