Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended

Every free-speech principle is easy until it meets a case that makes you want to throw the principle out of the window. This is that case.

Nobody enjoys defending it. A grieving father buries his son, a Marine killed in Iraq, and a small band of protesters shows up nearby with signs. The signs are cruel. The words are meant to wound. And the Supreme Court, by a vote of eight to one, said the protesters were entitled to be there.

If your first reaction is "that cannot be right," good. That is the correct instinct of a decent person. This post is about what to do with that instinct once the instinct meets the Constitution. I will tell you where I come down. I will also give the other conservative position a fair hearing, because it deserves one, and because the justice who held it is no fool.

The facts

Matthew Snyder was a lance corporal in the United States Marine Corps. He was killed in Iraq in March 2006. His funeral was held on March 10, 2006, at a Catholic church in Westminster, Maryland.

A church from Topeka, Kansas, led by the Phelps family and known as Westboro Baptist Church, picketed the funeral. Its members have picketed many funerals of service members, with signs that attack the military, the country and various groups, and that they present as religious messages about what they believe God is doing in the world. I am not going to dwell on the content or the theology. What matters here is the setting.

The protesters notified the local police in advance. They stood on public land, roughly a thousand feet from the church, behind a barrier set up by police, at a distance and out of sight of the funeral itself. They were there for around half an hour before the service began and did not disrupt the ceremony. Albert Snyder, Matthew's father, saw only the tops of their signs on his way to the service and learned what was on them later, from news coverage and the Internet, including a message the church posted on its website.

Here is the first thing the coverage tended to skip. A thousand feet is a long way. It is roughly three football fields, and the protesters spent the whole of it behind a police barricade, which makes this the only demonstration in history to be both maximally offensive and minimally visible.

Mr. Snyder sued. He claimed intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy. A federal jury in Baltimore awarded him millions of dollars in compensatory and punitive damages. The trial judge trimmed the punitive part, and the award was still substantial. The Fourth Circuit reversed on First Amendment grounds. The Supreme Court heard the case and decided it on March 2, 2011.

The question

Can a jury hold a protester liable in tort for emotional distress caused by speech on a public street, about public matters, when the speech is deeply offensive and the audience is a grieving family?

Stated that way, the issue is hard because both sides have a real claim. The family's grief is real. The protesters' right to speak on public issues in a public place is also real. The Court's job was to decide which claim the Constitution protects.

The holding

Chief Justice John Roberts wrote the opinion for eight justices. The Court held that the First Amendment shielded the protesters from tort liability on these facts.

The reasoning ran in a straight line, and I want to lay it out in numbered premises, because it holds together better than its critics admit.

1. The First Amendment gives special protection to speech on matters of public concern. The Court has long held that speech on public issues "occupies the highest rung of the hierarchy of First Amendment values." Speech about purely private matters gets less.
2. Whether speech is public or private turns on its content, form and context. The Court looked at the whole record. The signs addressed the conduct of the nation, the military, homosexuality in the armed forces, and scandals involving the clergy. Those are subjects of public debate, however crude the presentation.
3. The location mattered. The picket was on public land, next to a public street, where the law has long held that speech is at its strongest. It complied with local regulations and the instructions of the police.
4. Offence is not enough. The jury's verdict, the Chief Justice observed, rested heavily on the outrageousness of the message. But outrageousness is a judgment about the content, and a rule that lets a jury punish speech for being outrageous gives the jury unbounded power to punish unpopular views. As Roberts put it, the Court has chosen "to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
5. The grief is real, and it does not change the answer. Roberts wrote that speech is powerful, that it can stir people to action or inflict great pain. In this case, he said, the Court could not react to that pain by punishing the speaker.

The Court was careful about the limits of its ruling. It did not say that funeral protesters may do anything they like. It said the First Amendment protects speech on this record, in these circumstances, and it expressly left room for reasonable restrictions on the time, place and manner of funeral protests, which is the doctrine I will come to below. Justice Breyer wrote a concurrence emphasising that the decision was narrow.

The lone dissent

Justice Samuel Alito dissented alone, and his opinion deserves to be read by every conservative who wants to understand why this case divided people who agree about most things.

Alito's argument was not that the protesters had no rights. His argument was that the Court had stretched the "public concern" label to cover what was in effect a personal attack on a private family at the worst moment of their lives. He wrote that the nation's commitment to free and open debate "is not a license for the vicious verbal assault that occurred in this case." He thought Mr. Snyder was a private figure, a father who had not injected himself into any public controversy, and that a funeral is a once-in-a-lifetime event that the government has an interest in protecting from intrusion.

Alito also pointed out that the protesters had chosen the funeral deliberately, because it would attract attention. Had they wanted to address public issues, he argued, they had every other public place and every day of the week. They picked the funeral because it would hurt.

That is a strong argument. It deserves a better treatment than "the dissent is mistaken." So let me state the strongest version, as a debater should, and then answer it.

The steelman: the case for the dissent

A free society does not owe cruelty a platform at a burial. The line between public debate and private harm is real, and the law has always recognised it. We punish harassment. We forbid residential picketing aimed at a single home. We protect juries from demonstrations outside courthouses. A funeral is the most private of public events, and the grief at it is the most vulnerable kind. A father cannot choose to avoid his own son's funeral. This is the rare case in which the audience is truly captive, and the speaker picked the occasion for exactly that reason. If any speech can be regulated on the ground that it targets a private individual at a moment of acute vulnerability, this is it. A society that cannot tell the difference between a political debate and a stalking campaign has lost the ability to protect decent behaviour.

Many conservatives have held this view, and many still do. It comes from a good place: loyalty to the dead, to the families who bury them, and to the idea that a community may expect certain basic decencies. Nothing in what follows is meant to dismiss that.

The answer, point by point

Here is why I come down with the eight, and why I think a conservative should.

One: the rule has to work for speech we like

The test for any speech rule is not whether it would punish speech you hate. Any rule can do that. The test is whether it would also punish speech you love. A jury standard that allows liability for speech that is "outrageous" depends on what the jurors find outrageous. In Baltimore in 2007, a federal jury found the protesters' views outrageous. A jury in another city in another decade may find your church's teaching on marriage, a pro-life sign outside a clinic, or an essay about a public official, outrageous, and the rule will work the same way. The Court has long said, in cases such as Hustler v. Falwell (1988), that the First Amendment does not permit liability for speech merely because it is offensive. A conservative who wants the rule suspended for the Phelps family is asking for a rule that can later be turned on a pastor. Follow the "outrageousness" standard one step further than its fans do and you get a Constitution that protects only speech that has been pre-approved by a focus group, which is to say, speech nobody needed protected in the first place. The reasoning in Hustler v. Falwell Protected Parody, and Conservatives Benefit From It Now applies with full force.

Two: the content was about public matters

Alito's point that the protesters picked the funeral to maximise attention is true. It is also true of nearly every demonstration in American history. People protest where the audience is. They picket outside the White House, outside a statehouse, outside a factory. The choice of a place that draws attention is not a sign that the message is private. And the content here addressed public issues, however badly. The Court was right that a judge cannot sort messages into "worthy" and "unworthy" and protect only the worthy.

Three: the captive audience doctrine is narrow for a reason

The Court has accepted that people may be shielded from unwanted speech where they cannot avoid it, such as in the home. But it has been strict about the doctrine, because every speaker whose audience is unwilling would otherwise be subject to it. In this case the protesters were a thousand feet away. Mr. Snyder saw no more than the tops of the signs on his way to the funeral, and he learned what they said later. That is a thin basis for calling an audience captive.

Four: the right answer is a place-and-manner law, and the country wrote it

Here is the part that gets lost in the argument. The case does not leave grieving families defenceless. It leaves the remedy with the legislatures, where the Constitution says it belongs, and the legislatures had already acted.

• Federal law. In 2006, Congress passed and the President signed the Respect for America's Fallen Heroes Act, which bars certain demonstrations near national cemeteries and restricts protests in a defined window around funerals held there. The statute was aimed at the same conduct and drafted to meet the constitutional test: it regulates when and where, not what is said.
• State laws. Many states passed funeral-protest laws creating buffer zones, usually measured in feet from the service and limited to a window of time before and after. The details vary by state, so check your own legislature's website. Maryland has such a law too, and the Court noted that it was not in effect at the time of the events in this case.

A buffer law of that kind does what the tort verdict could not: it protects the funeral without giving a jury the power to punish a message. The Court left that route open, and the legislatures used it. We could not ask for a clearer example of the system working: the Court protects the principle, the people's representatives protect the families.

Five: bad speech needs a better answer, not a bigger lawsuit

When Westboro's pickets appeared, something happened that the lawsuit did not account for. Counter-demonstrators turned out to shield funerals. Motorcycle riders formed lines. Neighbours held flags and stood between the signs and the mourners. That is the American way of answering a hateful message: more speech, louder, with flags. Nobody ever won an argument with a loophole, but plenty of people have been out-shouted by a thousand neighbours who showed up with nothing but good manners. It does not need a courtroom, and it has the advantage of not creating a precedent that can be turned on the next unpopular speaker.

A fair word about Alito

I said I would give the other conservative position a fair hearing, so here it is without sarcasm. Justice Alito is a serious and principled judge, and his dissent is not the work of a man who dislikes the First Amendment. His concern is the kind of concern conservatives have always had about a culture that tolerates cruelty and calls it expression. A society that is too busy defending the rights of its vilest speakers to defend the dignity of its mourners has a problem.

And he is right about the moral facts. The picket was cruel. It was calculated to hurt. If you are a veteran, or the parent of one, the idea that the law does not stop that is a wound, and you are allowed to feel it.

Where I part from him is on the remedy. The remedy for cruelty at a funeral should come from the people through their legislatures, drawn narrowly and applied evenly, and from the community, which showed up in force. It should not come from a jury empowered to punish whatever message it finds hateful. That power does not stay in the hands of the people we agree with.

What this case teaches about principle

There is a reason this is the hardest case. Easy cases teach nothing, because everyone agrees. A principle is tested when it costs you something, and this case costs conservatives something deeply felt: the honour of the fallen, the pain of a father, the respect we owe to the military.

Here is the lesson I draw. The people who loved Matthew Snyder honoured him by being at his funeral. The people who protested were, in the end, a very small number of people with a very small audience, and their lasting effect was to prompt laws that now protect funerals across the country. Their legal victory was narrow and their moral defeat was complete. Nobody remembers their signs. People remember the riders and the flags.

A less funny conclusion than usual, but a truer one: freedom of speech is not a reward for speakers who deserve it. It is a restraint on governments, including the ones we elect, and it works only if it applies to the speakers we would pay money to silence. Frederick Douglass made that argument in Boston in 1860, and Frederick Douglass's Plea for Free Speech in Boston, Read Passage by Passage reads the speech line by line. If you want to see how the same principle protected a speaker nobody would defend, Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too is the companion case, and for the broader question of how conservatives should think about speech that offends, see Seven Myths About Cancel Culture, Starting With the One That Says It Isn't Real.

And for those who care about the men and women behind this case, our posts on veterans, including Seven Myths About Veterans That Shape Bad Policy, and the Facts, take up the questions of how a country actually honours those who serve. A buffer law is a courtesy. A good policy is a promise kept.

The dissent that still matters

One last thing about Alito. His dissent is useful even to those who disagree, because it marks the line that the next hard case will test. The Court has said that speech on public issues, in public places, in compliance with regulations, is protected even when it wounds. It has not said that every harassing message is protected. Targeted harassment of a private person, true threats, and speech that disrupts an event itself remain open to regulation. If you see a future case that sounds like Snyder, read first to see which side of that line the facts fall on.

The case in brief

1. In Snyder v. Phelps (2011), the Court held 8-1 that a church group's picket near a Marine's funeral was protected speech on public issues, and could not support a tort verdict.
2. Chief Justice Roberts reasoned that speech on public matters, in a public place, in compliance with police instructions, cannot be punished because a jury finds it outrageous.
3. Justice Alito's lone dissent made the strongest conservative case for the other side: a funeral is a unique private event, and the mourners are a captive audience.
4. The better answer is that a rule against outrageous speech depends on who is judging, while narrow buffer laws, such as the federal law of 2006 and the state statutes that followed, protect funerals without giving juries power over messages.
5. The principle applies to speakers we despise because it protects every speaker we cherish.

What you can do: look up your own state's funeral-protest law on your legislature's website, read how it measures distance and time, and if you find it vague, write to your state representative.