Hurtful Speech is Protected By the First Amendment - KOTA Territory News

Hurtful Speech is Protected By the First Amendment



Gary Jensen
Beardsley, Jensen and Von Wald


Albert Snyder's son – Marine Lance Corporal Matthew Snyder - was killed in Iraq during the line of duty. 


What happened at Matthew's funeral in Westminster, Maryland, is likely to offend you – make you angry – it was the issue in this lawsuit.    


The Westboro Baptist Church is a small congregation from Topeka, Kansas, consisting largely of family members of the founder Fred Phelps.  They picket military funerals to communicate their views of homosexuality, particularly in the American military.


During Matthew's funeral, this Church picketed with signs saying things like, "Thank God for IED's," "Thank God for Dead Soldiers," " "God Hates Fags," and "You're Going to Hell."  They did their picketing on public land in compliance with police instructions. 


The funeral procession came within 200 to 300 feet of the picket site.  Matthew's father saw the tops of the picket signs as he drove to the funeral, and saw what they said later that night when he watched a news broadcast covering the funeral.


Matthew's father sued the picketers for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.  He presented evidence of emotional anguish, severe depression, and aggravation of pre-existing health conditions.  He testified he was unable to separate the thought of his dead son from his thoughts of the picketing.


A jury awarded Matthew's father $2.9 million dollars in compensatory damages and $8 million dollar in punitive damages. 


The Fourth Circuit Court of Appeals reversed the decision of the jury and trial court, holding that the First Amendment protected the picketing.


The United States Supreme Court in an 8-1 decision upheld the Fourth Circuit.  In other words, the Supreme Court agreed that the picketing amounted to speech on public issues, which "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." 


The Court recognized that many Americans might be offended at the picketing, view it as morally flawed, and believe that funeral picketing is "certainly hurtful and its contribution to public discourse may be negligible."  However, that was not a valid reason to limit the "speech."  The Court stated:


Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation, we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.  That choice requires that we shield (the Church) from tort liability for its picketing in this case.


What do you think  of the Court's decision in Snyder v. Phelps, No. 09-751? 


E-mail Gary is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.


1.      You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future? 


2.      You learn another person is hurt using a machine that has injured others in the past and will injure others in the future? 


3.      You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?  


What should you do? 


Try to prevent the next accident, injury, and catastrophe from happening. 


How can you do that? 


Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.


Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.   


Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker. 

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