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. Right decision, wrong plaintiff. Can I now suggest that free speech zones are also now illegal under the First Amendment?

  2. 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.

  3. 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!”

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

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

  5. 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,


  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. @ 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.

  12. @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.

  13. 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)

  14. @ 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.

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