Snyder v. Phelps

-Submitted by David Drumm (Nal), Guest Blogger

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.

H/T: SCOTUSblog, Religion Dispatches, FindLaw.

37 thoughts on “Snyder v. Phelps

  1. The federal government (SCOTUS) must maintain absolute silence in this case except to say it must remain silent because the federal government has no power over cases of assembly and speech (except if the federal congress legislated against them and the court says it’s unconstitutional).

    Only when you misunderstand Federalism do the various rights in the first amendment appear to be in conflict with one another. They are never in conflict if you keep your eye on who is being told not to infringe: It is the federal government who is being told not to infringe.

    The rights listed therein are then to be examined in state and local governments who have this power against certain speech or assembly since the federal government doesn’t. They get to determine how much infringement can occur.

    God bless the 10th Amendment. (I don’t think He hates it either). That’s how I see it, anyway.

  2. I think everyone should just chill out and try some peyote….its good for the soul…’ll give you a natural different perspective….

  3. RAE:

    The main precedent I’m concerned with is what the Constitution says. Any law or judgment by any court which usurps it is invalid. But the case you cited doesn’t disagree with what I claimed (that the states have power to limit speech).

    Though the case you referred to is more about incitement to violence. Incitement can only be proven AFTER the fact otherwise anything can be called incitement (as recent events clearly demonstrate).

    And, according to that reasoning, the law you cited is very bad law.


  4. Rae: RE: Tootie

    Rae, you have an excellent suggestion, but you have to understand that Tootie wears a logic-proof vest that goes well with her tinfoil hat. If she were to try to familiarize herself with precedent and what the law actually says it would require, you know, reading and thinking and stuff.

  5. i will echo AY’s sentiments.
    Anyone who has friends or relatives in the military can understand Mr. Snyder’s sentiments here. I am pretty much an absolutist when it comes to Free Speech, but these Westboro “Christians” really push the limits of my beliefs. I sure hope that the Supremes stop these guys before someone gets hurt. Their actions are the ultimate hate speech in my opinion and they are pushing the wrong people when they picket at military funerals.

  6. I am a defender of free speech. But that doesn’t prevent me from wishing that the Westboro bastards’ perverted “god” would steer them in the direction of religious services involving the handling of rattlesnakes.

  7. A few months ago, serviceman from the next county over was killed in Afghanistan. The Westboro crowd announced they were going to picket, and were spotted in the nearest large town. The county where the memorial service was to be held, and the location of the announced picketing, is in the heart of the Blue Ridge mountains and is little changed over the past century or more. This is rugged country, inhabited by the hardy Scots, Irish and Welsh descendants of the first settlers in the hills. Every household in the area has at least one gun and the people are fierce patriots. Many are direct descendants of the Overmountain Men who trounced the British loyalists at King’s Mountain.

    The Westboro crowd apparently scoped out the site of the memorial service and the small town where it was going to be held. They did not show up. My take on it is they decided discretion was the better part of valor, and wanted to get out alive. One of their motives is to get someone to make physical contact with them, then they run down to the courthouse and file a civil lawsuit against that person for violating their rights or for personal injury. But, in this part of the country, they may have figured a civil lawsuit would have zero traction. But even more, the idea of picketing in a rural area where every mountain man (and woman) has a deer rifle with a scope on it would be even more foolish than their normal day activities.

  8. “I sure hope that the Supremes stop these guys before someone gets hurt. ” (rafflaw)

    “But even more, the idea of picketing in a rural area where every mountain man (and woman) has a deer rifle with a scope on it would be even more foolish than their normal day activities.” (Otteray Scribe)

    I think we can all see it coming …

  9. Otteray Scribe, Lawsuits are the cornerstone of their ‘business’:

    Fred Phelps is a Con Man
    Why the Westboro Baptist
    Church is a Scam

    “Fred Phelps does not believe what he is doing. This is a scam.

    It’s a business. They travel the country, set up websites telling you exactly when they’ll be there, and using the most inflammatory statements all over the place, just to get someone to violate their rights for profit. Then they sue the military, the police force that was to protect them, and everyone that is around them for money. This is a sham, and it is a trap to get people sued. Every member of his family is an attorney. Phelps does not break the law. What he does is try to make you break the law by trying to punch your sensibilities about everything you hold dear, and then sue you and everyone municipality around him to the max.

    This is a scam. … “

  10. Lottakatz

    Exactly. Except Fred may actually believe what he says. Money is the goal, of course; God’s grace shown in the form of many, many pieces of silver. If God didn’t approve, He wouldn’t make it so profitable, would he? All those sinners shelling out, what could be more righteous?

    It’s only surprising that some other group hasn’t copied their method – yet.

  11. Otteray:

    A Harvard grad and constitutional scholar who is our current president of the United States just signed massive nation-changing, totalitarian police-state, Marxist legislation into law and a little nobody like me isn’t fit to determine what the Constitution does or does not say?

    You are not to be believed.

    The founders believed that people like me could understand the meaning of the Constitution and that the powers therein were knowable. What you refer to (the statutes, rulings, and court decisions) is likely to be the corruption of the Constitution and real justice by old-fart Wizards of Oz standing behind the curtain trying to scare the little people off by telling them these things too complicated and serious for them to understand.

    I’m not going to be patted on the head by people who think they are superior to me and clearly are not.

    I read the statute RAE provided. And I commented on it. Reread my comment and address EXACTLY what is wrong with what I said in relation to the laws in question. You can do that instead of lobbing an ad hominem at me. You might even recover your integrity.

  12. Tootie, your problem is that you do not have a clue as to how much you do not know. When you come on a legal blawg populated by legal experts and pontificate about legal and constitutional issues, it would be a good idea to moderate your responses to those matters you actually know something about. Unfortunately, you seem to have blurred boundaries between what you know and what you THINK you know.

    Have a nice day. Bless your heart.

  13. I am surprised the Court even took this case. There was no state restriction on the protest of military funerals in place at the time of the Phelps family protest. Additionally, Snyder neither heard nor saw the Phelps protest during the funeral. The only remaining tort claims for the Supreme Court to decide where on IIED and invasion of privacy (intrusion into seclusion), neither of which should be actionable given the factual scenario.

    The defamation claim was tossed out at the district court level and was not up for challenge at the Supreme Court level.

    Although this blog addresses one of the questions presented, that question was perhaps the most poorly phrased, and actually is not the main issue in this case. The main question is actually to what extent does the First Amendment right to free speech insulate the Phelps family from state tort claims.

    Unless the Court manages to bend over backwards and carve out a new exception to free speech this one should be fairly open and shut, and the Phelps family should prevail.

  14. While free speech may be the central issue, what about the intentional infliction of emotional distress? You have families that are suffering at the loss of a loved one – why should they be subjected to further distress by a group whose sole purpose is to cause more heartache for a soldier’s loved ones?

    IMO, there is a fine line between free speech and intentional infliction of emotional distress. Where does this line get drawn more clearly?

  15. @ Stamford

    Although I am also sympathetic to the Snyder family, the factual scenario does not support their claim.

    Albert Snyder testified that he neither heard nor saw the Phelps family protesters during the funeral. Additionally, the Phelps were protesting 1000 feet from the church entrance, and the funeral procession only came within 200-300 feet of the Phelps family protest.

    The invasion of privacy/intrusion into seclusion claim would be more likely, but the Court has never held that there is a right to be free from any protest (especially one neither seen nor heard by the plaintiff) during a funeral.

  16. A hypothetical: What if some random guy that no one had every heard of showed up at the funeral of someone killed in action in Iraq/Afghanistan? That person then proceeds to say the kinds of vile, offensive drivel that the Westboro folks spout. Any reasonable person hearing it in that context would conclude that if the person is sane, then he is attempting to instigate a physical fight. If someone walked up and punched this hypothetical guy, and he sued, how many juries would award this random guy any money?

    It seems that we are providing the Westboro folks some sort of extra protection because they are “an organization” and because they have a PR operation. If we treat them as simply a bunch of people out saying what they are saying, in the contexts that they put themselves into, then they seem to be doing something akin to “yelling FIRE! in a crowded theater”.

    If all they were doing was promoting their (vile) theological theories, then I would fully support their right to make asses of themselves in public. But they are clearly intending to incite and provoke a response from people around them in a way that exceeds their right to present a theological theory.

    Up to a point, Nazis have the right to mount a protest in Skokie. But there is a line somewhere, beyond which, they are obviously trying to pick a fight. Beyond that point the government has the right/responsibility to (metaphorically) floor the car and run them off the bridge into the water. (Sorry if I’m getting to Chicago-specific here)

  17. @KORourke:

    Thanks for the clarification. Perhaps my emotions would get the better of me, but if I were the parent of a son or daughter killed in war, just the mere presence of the Phelps family would be enough to make me physically sick. I think in cases such as this, there needs to be a clear definition of what constitutes free speech and what constitutes out and out harrassment.

    As tomdarch and others have noted, perhaps this is how Westboro stays afloat – incite violence, then sue the aggressor. If that is their true motive, they are scummier than I initially gave them credit for.

  18. @ Tomdarch

    Fighting words is an extremely narrow doctrine that would not apply here either. Regardless of the offensiveness of their message (which I would like to remind readers is actually textually accurate, whether Christians would like to admit it or not), the only thing during the funeral even remotely related to violence was a passerby yelling at the Phelps family from a passing truck.

    In this country, we have decided that we will let the marketplace of ideas bear out what messages we choose to agree with. If we were to begin restricting speech and allowing legal claims for plaintiffs that neither heard nor saw speech they found offensive, our country would quickly approach a slippery slope that would burden us all. The Phelps speech is based off their religious interpretation of the Bible, regardless of whether we agree with it or not.

    The Phelps family knows the law (at least 2 of the family members are lawyers) and knew that their protest was well within legal boundaries. The actually contacted the police prior to their protest in order to have a legal place near the funeral to protest.

    As a side note, I believe that nearly all (with perhaps the exception of a state or two) states now have statutory restrictions regarding protesting of funerals requiring a set back of a certain amount of feet. Interestingly, even under the current MD statute restricting funeral protests (enacted after this case), the Phelps family was outside the setback provided by the statute.

    Again, I think it was a questionable call by the Supreme Court in taking this case, as it is more of a news generator than a legitimate test of the First Amendment. Unless that is they want to do some legal contortions to rule on what is now an essentially a moot issue.

  19. Most people responding to this , do not know what this law suite is about, it is more then just the protest, its about harassment before, during and after the funeral. It was a personal attack on a private individual. They did have to reroute the funeral procession, and even after the rerouted the funearal,they were about 200 to 300 feet away. Mr. Snyder knew they were going to be there, he saw the tops of the signs, what do you expect him to do leave his sons body to go see what the signs said. Good Luck Mr. Snyder, no one has a firat amendment rigth to target a private person and cause emotional harm. No one in the history of this country has ever protested a funeral , targeting private people. This is not free speech and this case is not about free speech, its about tort law.

  20. No one can tell me this is what our forfathers meant by free speech, in our forfathers day these idiots would have been shot for treason, this case is way beyond free speech, I guess most of the free speech advocate, would not care if some one stood 30 feet from the main vehical entrence of the chuch with a sign that says THANK GOD FOR DEAD SLUTS, is this the society we want for our children, what a shame. I hope the Supreme court uses some common sense.

  21. I have to agree with Jane, and to all those concerned with the slippery slope remember it goes both ways. I have no problem with a ruling that says you can not harass private families during a funeral, by the way this is not about religion, its about attention and money thats why the Phelps do it.

  22. KOrourke says Fighting words do not apply, according to the Supreme Court transcrips one of the Justices asked Margie Phelps if she beleived a actual fight had to occur for the court to look at this as fighting words, I don’t think this is a far reach because trouble has occured at some of their protest. I also agree that this slippery slope goes both ways and a rulling in Phelps favor could be more devistating for our country. As a veteran I did not fight for anyone to have the right to cause someone emotional damage, this was a targeted attack on a private person. I have never lost a child and can not imagine the devistation this father has endured, and to have someone attack him personally at the same time makes this even worse. I hope the Supreme Court makes the right decision and rules in Mr. Snyder’s favor or we are all in trouble.

  23. 8-1 Justices ruled in favor of Phelps protestors and free speech. Once one takes a close look at the actual facts of this case it was an obvious win for free speech.

    No one likes the Phelps family or their message, but they are well aware of their rights.

  24. The family has been vindicated. God is smiling on us at this very moment. Please join our rally’s near you. Jesus was persecuted for his beliefs as well.

    I Remain,


  25. Legally vindicated and ethically sound are not the same thing.

    And by the way, Jesus didn’t preach hate.

  26. WestboroCoward,

    I had a very interesting conversation with Jesus last night – he said that for as difficult as you and your inbred brethren make it, he still loves you, but thinks that not only are you and your inbred brethren batsh*t crazy, but also colossal assholes to boot.

    Can I get an “AMEN, brother!”

  27. Opinion (pdf)

    Held: The First Amendment shields Westboro from tort liability for itspicketing in this case. Pp. 5–15.

    ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. ALITO, J., filed a dissent-ing opinion.

    JUSTICE ALITO, dissenting.
    Our profound national commitment to free and opendebate is not a license for the vicious verbal assault that occurred in this case.
    Petitioner Albert Snyder is not a public figure.

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