Scholars: Westboro message at Marine’s funeral offensive, but protected

Why seven groups of scholars filed briefs with the U.S. Supreme Court supporting the Phelpses, not Albert Snyder.

Daily Record/Sunday News

By Jeff Frantz

July 19, 2010

The writers of all seven amicus briefs filed this week with the U.S. Supreme Court in support of the Westboro Baptist Church noted two things:

The protest by the Rev. Fred Phelps and members of his family was terribly offensive and presented a worldview with which they disagreed greatly.

And, despite that, all seven said the court must rule in favor of the Kansas-based church when it hears the appeal by Spring Garden Township’s Albert Snyder in October.

Here, they said, is why:

Here are the groups that filed briefs this week with the U.S. Supreme Court backing the Westboro Baptist Church in saying the court should rule against Albert Snyder, and why:

American Civil Liberties Union

Interest in the case: The organization and its state affiliates historically “have addressed the relationship between freedom of speech and such torts as intentional infliction of emotional distress.” It filed an amicus brief to the Fourth U.S. Circuit Court of Appeals in this case.

Summary of arguments: The jury ruled in Snyder’s favor because of what the Phelpses said, not their presence at Matthew Snyder’s funeral. “However, the First Amendment guarantees of freedom of speech and free exercise of religion are designed to protect the right of speakers to voice their views on matters of public concern and to express their religious convictions . . . and this court has long understood the First Amendment to protect the right to speak without regard to the identity of the target audience.”

Foundation for Individual Rights
in Education and five law professors

Interest in the case: FIRE works to defend and promote individual rights at U.S. colleges and universities. The law professors, who teach at the of the University of California, UCLA, Temple, Northwestern and New York Law School, share similar concerns.

Summary of arguments: If tort liability can be awarded because of “allegedly outrageous and severely distressing speech, even when it relates to matters of public concern, then public universities would be equally able to discipline their students for allegedly outrageous commentary.”

Student speech could be restricted based on content in a way the court has prohibited until now, and universities likely would enact much tougher speech bans fearing lawsuits from offended students, staff and faculty.

Liberty Counsel

Interest in the case: As a “national nonprofit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of human life and the traditional family,” it is concerned that a ruling against the Phelpses would have a severe chilling effect on speech.

Summary of arguments: The court has created a very high standard for a person to be considered a “captive audience” who should have more protection from offensive speech: people in private homes, medical facilities, mass transit vehicles and school campuses during mandatory scheduled events.

Snyder could not have been considered a “captive audience” at his son’s funeral based on the logic the court has used to create the “captive audience” standard. “Try as he might, (Snyder and his supporters) cannot fit the square peg of a funeral service into the round hole of a captive audience.”

Reporters Committee for Freedom of the Press and 21 news media organizations

Interest in the case: The organizations — including the Associated Press, The New York Times, the National Press Club, Bloomberg, Tribune Company and the Hearst Corporation — say a tort ruling favoring Snyder “threatens to expand dramatically the risk of liability for news media coverage and commentary.”

Summary of arguments: By standing 1,000 feet away from the church celebrating Matthew Snyder’s funeral, the Phelpses were no more intrusive than if they had stood on any street corner in America. Snyder didn’t see the protests that day and based his argument on media accounts. A ruling in favor of Snyder “would have far-reaching effects on the media and other speakers, because the Westboro Baptist Church protests are not unique in any constitutionally meaningful sense.”

The Phelpses’ actions were not unprecedented, as other groups have previously protested funerals, including services for abortion doctors, those killed by police, non-union funeral homes and a Supreme Court justice.

Rutherford Institute

Interest in the case: Founded in 1982, the institute does free legal work for individuals whose civil liberties are threatened or infringed and educates the public about constitutional and civil rights issues. It says two of the most basic rights in America — the right to engage in free speech and protest — are at stake in this case.

Summary of arguments: Snyder claimed that his son’s funeral was a private ceremony. But, by giving media interviews about his son, announcing the funeral’s date and time, and allowing the media a place to set up just off church grounds, Snyder practically issued “an invitation for those who support or oppose the war to appear at or near the event for expressive purposes.”

Even if the ceremony was considered private, the Phelpses’ speech on a public sidewalk is still protected.

A group of First Amendment scholars

Interest in the case: The group, led by University of Missouri law professor Christina Wells, all teach and write about the First Amendment. They fear allowing juries to find people liable for offensive or outrageous speech would create “arbitrary and unpredictable standards.”

Summary of arguments: The court has always ruled that speech that is part of public discourse must cause “external harm” that goes beyond emotional distress for it not to be protected. For example, it would have to be provably false and permanently damaging. As political opinion, the Phelpses’ speech cannot be proved false. “No right to be free from offensive messages exists.”

Thomas Jefferson Center
for the Protection of Free Expression

Interest in the case: Founded in 1990, the center’s mission is to protect free speech and the free press, both of which it says are at issue in this case. The center also filed a brief with the Fourth Circuit.

Summary of arguments: The court does not need to address any First Amendment issues because Snyder did not meet the legal standard to prove either intentional infliction of emotional distress or intrusion upon seclusion. “A review of the record makes it apparent that the district court misapplied Maryland law to the facts presented.”


Albert Snyder sued members of the Kansas-based Westboro Baptist Church for intrusion upon seclusion and intentional infliction of emotional distress after some of its members protested 1,000 feet outside the 2006 funeral of his son, Marine Lance Cpl. Matthew Snyder in Westminster, Md. A federal jury ruled in his favor, but the Fourth U.S. Circuit Court of Appeals overturned the verdict.

Snyder is asking the Supreme Court to restore the jury’s verdict. The court is expected to hear oral arguments in October.

For more about the case, including all the briefs filed, visit