This case was argued before the Supreme Court on 6 Oct. 2010 and we are awaiting their decision. This is the “funeral picketing” case involving Petitioner Albert Snyder, the father of Lance Corporal Matthew Snyder who was killed in Iraq, and Respondent Rev. Fred Phelps of the Westboro Baptist Church.
Snyder sued Phelps, and his church, in federal court in Maryland, where the funeral was held. Five claims were asserted under Maryland law: defamation, publicity given to private life, intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. The district court, on summary judgement, rejected the defamation and publicity claims but let the remaining claims go to jury. The jury found against Phelps and awarded Snyder $10 million, which was later reduced to $5 million by the district court.
The Fourth Circuit Court of Appeals reversed, ruling that the district court erred in allowing the jury to decide the constitutional questions. But the Fourth Circuit also ruled that Phelps’ activities were protected by the First Amendment. The court found that Phelps’ speech was “rhetorical hyperbole” rather than a “provable false factual connotation.”
Interestingly, the case won’t be decided on the basis on the First Amendment’s free exercise clause. Although the free speech claim might be meritorious, the free exercise claim is not. The reason is Justice Scalia’s opinion in Employment Division v. Smith, a case involving the use of peyote in a Native American religion. Justice Scalia wrote that there can never be a free exercise claim when a law does not burden only religious practices. Since the anti-peyote law burdened both religious and non-religious peyote use, the free exercise clause does not apply. Although the government can issue exceptions, like for sacramental wine during Prohibition, it is not obligated to do so.
One of the questions before the Court is “whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly.” However, it is axiomatic in constitutional law that the First Amendment only protects against governmental violations, not violations by private actions. Everyone involved in this case falls into the latter category.
The ACLU has file an Amicus brief on behalf on Respondent Phelps, here.