Free speech for Fred Phelps

Fred Phelps is a civil libertarian’s nightmare; his vicious, homophobic protests at military funerals, outraging liberals and conservatives alike, can make censorship seem like a patriotic duty. Rarely does one man’s speech equally enrage so many people who share so little.

But, in some ways, this is still America. While Republicans and Democrats alike condone torture and indefinite, no-trial detention for terror suspects, while the national security state keeps us all under the constant threat of surveillance, while the Supreme Court denies us the right to engage in peaceful human-rights advocacy of which our post 9/11 government disapproves, we still have legal rights to offend each other, deeply, especially on matters of public concern. Earlier this month, in Snyder v Phelps, the Supreme Court upheld a lower appellate court decision striking down a multi-million dollar damages award against Fred Phelps won by Albert Snyder, the father of slain soldier, Matthew Snyder, whose funeral Phelps’s Westboro Church had picketed.

Phelps and company had paraded their usual array of deranged signs, including: ‘You’re Going to Hell’, ‘God Hates Fags’, ‘God Hates You’, ‘God Hates the USA’, ‘Thank God for Dead Soldiers’, and ‘Thank God for IED’s’. But predictions about who is and is not going to hell and statements about God’s personal preferences are constitutionally protected opinions, especially, the Supreme Court stressed, when they address matters of public concern – which in this case included ‘the political and moral conduct of the United States and its citizens, the fate of our Nation (and) homosexuality in the military’.

The Court also relied on a key fact that supporters of the Snyder lawsuit tended to ignore. In protesting Matthew Snyder’s funeral, Phelps had respected time, place and manner restrictions imposed by law. He had ‘alerted local authorities… and fully complied with police guidance on where the picketing could be staged… The protest was not unruly; there were was no shouting, profanity, or violence.’ And, in fact, grieving father Albert Snyder did not see the protest signs at the funeral; he saw them later on a TV newscast.

Did the Phelps protest still manage to disrupt Matthew Snyder’s funeral? That depends on how you define disruption. Albert Snyder claimed that he was aware of the planned protest and that the funeral procession used a side entrance to the church to avoid encountering it. But this relatively successful evasion of the protesters (and the fact that Snyder only saw Phelps’s hateful signs on TV) undermined his alternate claim that he was held ‘captive’ by the protesters: Snyder ‘is entitled to governmental protection from the Phelps’s conduct because he was a captive audience at his son’s funeral’, Snyder’s brief to the Supreme Court insisted. It’s an interesting argument. In theory, the privacy rights of a captive audience may sometimes limit the speech rights of protesters whose presence and message is impossible to avoid. The trouble is, as the Supreme Court observed, the facts in this case did not support the theory, which is ‘sparingly applied’ in cases involving protected speech.

If Phelps obeyed relevant ordinances and police commands and did not actually disrupt the funeral proceedings, then why was he held liable for protesting it? Albert Snyder advanced a series of tort claims against Phelps, including, most notably, intentional infliction of emotional distress caused by the funeral protest and by subsequent internet rants about Matthew and his family, the sight of which allegedly made Albert Snyder ‘violently ill’. The trial court dismissed two of Snyder’s claims (involving defamation and publicity), but allowed his claims of emotional distress, intrusion and civil conspiracy to be determined by a jury. Guess who the jury found more sympathetic – the visibly anguished father of a slain marine or the cruel, contemptuous, hate-mongering protester?

Pitting free speech for everyone against compassion for a grieving parent, Snyder v Phelps is the sort of case that civil libertarians dread: it’s easy on the law but hard on the heart. You sympathise with Albert Snyder, naturally; you want to try comforting him. But tolerating the discomfort, outrage and distress occasioned by a heartless protest is, in part, the price of liberty. Submitting the right to express hateful, unpopular ideas to a popular vote is precisely the evil the First Amendment is intended to prevent. Snyder’s claims of emotional distress should never have been presented to the jury; they should have been dismissed, as a matter of law, by the trial judge. The district court’s instructions to the jury in this case were also deeply flawed, and, in my view, more dangerous than any number of cruel, crazy, yet peaceful protests. The judge told the jury that ‘vulgar, offensive, and shocking’ speech may only enjoy limited constitutional protection, suggesting, nonsensically, that the First Amendment fully protects only inoffensive speech that wouldn’t be unwelcome in polite company – and wouldn’t need protection – unlike the ravings of Fred Phelps.

Consider the consequences of allowing juries to decide when speech is sufficiently distressing to be punished with substantial damages (and, therefore, severely chilled, if not effectively legally prohibited). Determinations of emotional distress are, like the experience of distress, inherently subjective, and its causes may be impossible to isolate. Albert Snyder testified that the Phelps protest ‘tarnished the memory of (his) son’s last hour on earth… he described the severity of his emotional injury stating that he is often tearful and angry… so sick to his stomach that he actually, physically vomits’. Expert witnesses for Snyder testified that the protest had exacerbated his diabetes and severe depression. How did they know, I can’t help but wonder? How could they testify with any certainty that Matthew Snyder’s death would not have had the same effect on his father’s physical and mental health in the absence of Phelps’s protests? How could jurors evaluate the actual, causal relationship of Fred Phelps’s speech to Albert Synder’s grief at losing his son?

And, if juries may punish pure political or religious speech with censorious damage awards in the belief that it was excessively distressing, then what speech may jurors not punish? It’s easy to imagine that some grieving parents might be deeply distressed by anti-war protesters who display signs at military funerals or write internet posts claiming that their sons or daughters died in vain fighting unjust wars, or even worse, that their children were murderers or collaborators in oppression. Speech with no apparent political or religious content would be even more vulnerable to the subjective reactions it evokes from people who find it distressing. Imagine the award that a jury of anti-porn feminists and right-wing anti-porn activists would award to someone who claimed to have been traumatised by pornography.

A diverse collection of state attorneys general who filed amicus brief in support of Snyder’s lawsuit dismissed slippery-slope arguments like this with the irrelevant assertion that the Phelps case is unique (‘no one else in the history of this country has utilised their tactics’). But, as these attorneys must know, even if the Phelps protests are unique and unlikely to be precisely repeated, legal precedents making them vulnerable to civil lawsuits would have general applicability.

Besides, the view of offensive or distressing speech as a form of assault, which partly underlay the Snyder case, is not at all unique, thanks to late-twentieth-century pop therapies and expansive notions of child abuse, as well as the anti-porn movement. Years ago, anti-libertarian feminists were widely derided for arguing that adult pornography was dangerous, distressing, and undeserving of legal protection. Today, their theories are widely accepted and were reflected in the Snyder case (and, at the Supreme Court, in the sole dissent by Justice Alito). Phelps and his followers are ‘emotional terrorists,’ the attorneys general insisted sensationally, echoing the characterization of pornographers as ‘sexual terrorists’. Everyone knows we’re engaged in a war on terrorism and, when speech policers call protesters or pornographers ‘terrorists’, they’re rarely speaking metaphorically.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) An earlier version of this article appeared at theatlantic.com.