Look, it's their opinion - Snyder v. Phelps

Few parties in a Supreme Court case will bear the enmity and hatred that the defendants in Snyder v. Phelps do. Even murderers. In fact, in my own experience, regular folks discussing the defendants suggest that they be horse-whipped, beaten up and even killed. The case was argued before the court this past Wednesday. Yet, the defendants have not committed a crime and are not even accused of doing so. They have merely held up signs stating their opinions down the road from a military funeral. These opinions aren’t very popular.

Here are the barest facts. The plaintiff, Albert Snyder, is the father of a marine, Matthew Snyder, who died in Iraq in a Humvee wreck back in 2006. The funeral was held a week later in Maryland where the young corporal was raised.

The defendants are the Westboro Baptist Church of Topeka which is run by Pastor Fred Phelps (whose daughter, Margie, one of several lawyers in the family, argued the case at the Supreme Court) and which mainly consists of the Phelps family. The church takes the position that America has become immoral and they need to speak out so we all repent before it is too late. Almost 20 years ago the church began a practice of picketing public events, which occasionally draws public attention. In 2005, they started to picket funerals. They argue they are merely emulating Christ throwing the moneychangers out of the temple, and other prophets, and, I guess they are if you take what they say seriously. They actually don’t seem to care that much about moneychangers but focus on gays, adultery – and that includes someone who remarries - and other social ills from their point of view. Arguably, if you contest what they did, you also contest the prophets in the Bible who accused Israel of sinning. At least, that is a reasonable proposition.

Thus, the Snyders and the Phelps came together when the church picketed Matthew’s funeral. You might not be surprised if the Snyders are a little upset about signs that said things like “God hates fags” and “Priests rape children”. The Phelps were apparently upset that the Snyders were divorced and Catholic, so . . . . Moreover, they believed Matthew had died because of our collective sins, as nutty as that sounds to some (most?) of us. They didn’t stop at the funeral but went on in the same vein on their website where they claimed that Matthew’s parents had raised him for the devil, taught him to defy God and that he was a liar. You know, religious stuff that sounds a lot like the kooky mother in Carrie. As an aside, their website kind of makes me wonder, if Hitler was alive, would he have a facebook page?

The Phelps, in most people’s opinions, in even religious people’s opinions, are nuts, if not monsters. I don’t need an opinion poll on this one. I’ve yet to hear from one person who sympathizes with them or doesn’t feel sorry for the Snyders, including on various blog cites where you get almost every opinion. Some of that though is based on a misunderstanding of what really happened. I heard Margie Phelps speak years ago on the radio, and although I think she is frightening when it comes to religion, I also think she is bright, courageous and very articulate.

The Snyders sued on five grounds (I’ll ignore the conspiracy though) – defamation of character, publicity given to private life, intrusion upon seclusion and intentional infliction of emotional distress. Two were dismissed before trial – defamation and publicity given to private life, leaving the emotional distress claim and intrusion claims (plus conspiracy to commit same). After trial, the jury came back with a verdict of 2.9 mill. in damages and another 8 mill in punitive damages in the Snyders’ favor. The judge decided 8 mill. was too much and lowered it to 2.1 million.

On appeal though, the federal court of appeals, after saying how “utterly distasteful” the words were, acknowledged they were covered by the first amendment. Moreover, it wasn’t libel. They weren’t stating facts about Matthew. They were using hyperbole to express their opinions. In fact, they were just expressing opinions about matters which are frequently a matter of public concern. If you care, the court based its decision, in part, on the famous New York Times v. Sullivan case (where the rule was made that if you said false things about a public figure, you have to prove malice – that is, knowing falsity or reckless disregard for it) and Hustler Magazine v. Fallwell, where the court permitted on first amendment grounds to allow a sexual satire of Jerry Fallwell (leader of the Moral Majority, if you didn’t remember).

The issues for the Supreme Court may be a little esoteric. I’ll state the plaintiff (who lost on appeals) points very briefly and give my non-legalese response.

1) The speech used by the Phelps was not protected by the first amendment because the people involved were all private citizens (as opposed to public figures like Jerry Fallwell) and the statements were about private matters. Sure, the law applies slightly different legal principles if someone is a private citizen as opposed to a public figure, but I don’t see it making any difference here because I don’t really see any real facts stated, just hyperbolic opinion (even the Semper Fi fags does not mean they are falsely suggesting Matthew was gay). They didn’t really state anything that could be mistaken for an untrue fact about Matthew – stating that he died for our sins is not a fact that can be proven one way or the other and certainly doesn’t libel him. The Phelps claim they were not referring to the deceased, but everyone else in America. I believe them. As ridiculous as I find their beliefs, they certainly have the courage of their convictions, voluntarily open themselves up to every form of contempt and seem to go out of their way not to violate the law. In addition, the Phelps claim that the Snyders made their son a public figure by publicizing his death and complaining about the war. However, whether he is or not, they believe they are entitled to their opinion. The issues concerned are certainly publicly discussed - homosexuality, adultery, religion and so on. I can’t see it any differently.

2) If the Phelps have first amendment protection, the Snyders also have first amendment rights to practice their religion in peace and privacy. Of course they can practice their religion in peace. And they did. The Phelps were too far away to bother them - 1000 feet. That’s almost 3 football fields away including the end zones. Not only that – they left when the funeral started. The people at the funeral did not even know they were there and learned about it later

Right of privacy? Certainly not a constitutional right (there is no general all purpose privacy right in the constitution, although I imagine there are judges who would like to find one). But, that doesn’t mean that Maryland cannot prohibit it as long as it is not too vague. Would I have a problem with the Phelps coming into the church or screaming 100 feet away from them and interfering with the funeral. You bet I would. But they were a 1000 feet away! Meanwhile, other people expressing opinions, positive ones, were right at the church and certainly no one complains about them. How private is that? It seems not at all.

3) The family at the funeral was a “captive audience” which is protected in the law from suffering the slings and arrows of outrageous insults? Again, the Snyders weren’t even an audience. Mr. Snyder learned about the picketing on television afterwards and later still of the website. The popular image of the Phelps interrupting the funeral just doesn’t exist.

Those are my general responses. I’m not going to analyze the law further here. I’ll wait to the Supreme Court rules if I want to do it then, particularly if they come out against the Phelps and reinstate the judgment. At the end of the day, the court could completely agree with the appeals court and affirm the dismissal entirely or agree that the trial court erred in allowing the jury to determine matters of law and send it back down to determine any claims they still might exist (I think most likely, the emotional distress claim based on the website, if anything).

But, as reluctantly as all those who find the first amendment triumphant in this case are to support speakers they find detestable, this one seems easy case to me under the indisputable facts, never mind the law. In fact, as “sexy” as this case is, I really don’t know why the Supreme Court took it. Perhaps, they were as outraged as the rest of us at the content of the Phelps’ speech, and were hoping for a reason to reverse. Perhaps it was the many U.S. Senators who came in on the Snyders’ side. I hope the court does not treat it lightly or politically because this is an important issue. We can’t water down the first amendment just because someone’s viewpoint is offensive to others. However, if there is a weakness to the Phelps’ defense, it is the website, which made statements which arguably, could be said to be factual – like, they taught Matthew to hate the creator and that God is a liar. The appeals court found that this was hyperbole, and not actionable, and I agree.

But, loving to point out hypocrisy, both parties here have something to offer. The Phelps find our country immoral to the point that he who they believe created all are killing our soldiers, but they run to hide behind our most appreciated achievement - our constitution. That's not unusual, of course. Even critics of some modern constitutional rights hide behind them. As for Mr. Snyder, he claims that his privacy has been invaded, although the Phelps did not come near the funeral in the ordinary sense of the word - yet he does to them the most invasive thing he can think of - he sues them. Few legal acts are so personal. However, on his side, there is much evidence of actual emotional damage, unless he's just a great actor, and no one seems to think so. However, he forgets the old saying - never wrestle a pig in the mud; you both get muddy and the pig loves it.

I was stunned by the questions of the Justices at the oral argument as they seem to want to ignore the fact that the Phelps were so far from the funeral and did not interfere with service. That worries me a little.

One of the arguments I hear from those who feel that there were privacy interests here that trump free speech is that this was “hate speech” and therefore not covered.

We have many exceptions to the first amendment – defamation (libel or slander), certain breaches of the peace such as causing a panic such as the quintessential screaming “fire” in a theatre or fighting words, obscenity (and even indecency in certain circumstances), inciting someone else to commit a crime or to sedition, speech which constitutes involvement in a crime (e.g., bribery is essentially a crime of expression), intentional infliction of emotional distress and expression which is otherwise constitutionally prohibited (e.g., language deemed a violation of establishment of religion). It’s not a complete list. So, why not hate speech?

For one thing, there really is no such thing as unlawful hate speech in general. While there are hate speech statutes in many states, it does not exist in the air, and some of them are unconstitutional.

In a 1992 case, R.A.V v. The City of St. Paul, the court determined that a statute which made unlawful certain activities “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” including putting a Nazi swastika or burning cross on private or public property.

The reason the court gave for turning it down was not because a government can not make hate speech illegal (thereby making certain thought illegal), but because if it proscribes a certain type of speech (hateful), it cannot then pick certain types of that speech to be okay and other types illegal. Judge Scalia’s opinion, in my estimation, was illogical, and even if it is logical, it’s really hard to understand. However, one example he gives helps a little. The government can proscribe certain categories of speech (like obscenity or defamation), but cannot determine that certain obscenity is okay and other not based on content. You can make it illegal to burn a flag under fire laws, but not burning a flag to dishonor it. You can make defamation illegal, but not just defamation which is critical of government.

That’s Justice Scalia’s argument, not mine. I see it as a word game – defining sets within sets that don’t really even exist. Take obscenity. In order to find something obscene, constitutionally there must be a specific statute which specifically describes the obscene behavior. In other words, some activities which are sexual are not obscene and others are. Plus, only those acts which have no other redeeming value are obscene. Of course that is proscribing content, but Justice Scalia and the court don’t see it. You could apply R.A.V. to that rule and all of a sudden what is needed to make obscenity constitutional under the Miller Test (which I just described) because it discriminates, would make it unconstitutional under the R.A.V. test for the same reason. We do the same thing with defamation. All defamation is not treated the same. Those statements concerning which are vaguely deemed public matters gets the speaker more constitutional protection and persons who are so called public figures get less. That’s discriminating according to content either way you look at it.

I would have preferred a more straight forward rule that the government cannot ban speech just because it is deemed hateful by some. There is room to still ban acts of terror such as burning crosses on someone’s lawn or public property with intent to intimidate as the court found in Virginia v. Black (2003), although they struck the statute there because the burning was deemed prima facie evidence of intent. But, if you want to do it on your own property or have a swastika clock in your house, you should not be prohibited in my view.

The next year the court decided Wisconsin v. Mitchell, which somehow I had either missed or forgotten about until I was arguing with ubiquitous commenter Don one day about hate speech (admittedly, I can forget where I put a piece of paper which I am holding in my hand, but I don’t usually forget the stuff of arguments) when I googled it up on his ancient computer which I had to start with a hand crank. Don’s assertion that the Court had affirmatively found hate speech legislation constitutional was correct – marking, of course, the first and last time he has ever bested me in any argument. But everyone should get credit for their incredibly unimportant, meager, petty little victories, and I'm happy to give it.

In Mitchell the court allowed hate speech to be a reason to increase a criminal penalty. It didn’t really outlaw the speech itself, which the court stressed, but did permit it to be a factor in the court’s sentencing. Justice Rehnquist’s reasoning was that motive had always been a factor in the court’s determination. Of course, the court often finds that history trumps the constitution (except, usually, Justice Thomas), that is, until they don’t. I find the reasoning mere rhetoric. Whether expression permits a government to sentence to jail someone for terrifying someone with it or increasing the penalty for another crime because of it – it is still punishing based upon the content speech.

The other comment I frequently hear or see mentioned is that the Phelps’ signs and websites constituted fighting words. Fighting words can be constitutionally prescribed. The phrase was made famous in an old case, Chaplinsky v. New Hampshire (1942), where, almost laughably by today’s standards, was charged with using offensive words directed at another person in a public place. The words – “damned fascist” and “racketeer”. I get called worse all the time, and that’s just by family and friends. In fact, I am called a liberal and a conservative frequently, and I know that they are often meant as dire insults.

But, although the fighting words doctrine is still valid, it is less frequently used and I seriously doubt the original case would have passed constitutional muster either (then again, Chaplinsky was decided during WWII (when several bad decisions were made) and fascist was a very charged word. But, again, it must be remembered that the Phelps do not interact with the mourners at funerals. The Phelps never said anything to Mr. Snyder’s face and weren’t near him.

Without going through the history of cases in the past century which have greatly expanded free speech rights, increasingly the court has gone from punishing the speaker to protecting the speaker, with the exception of the anomalous case of Feiner v. New York, in which young Irving Feiner was arrested for making a black rights speech (he was white) in public, and the conviction was upheld by the Supreme Court (1951) not because of the content of the speech, but because it was all right for the police to arrest him in order to curtail his speech which they believed might cause a riot. Actually, it was one man who threatened to punch him and he was not near even Feiner and had his wife and kids with him. That’s what the official record says anyway. Mr. Feiner just died last year and was a feisty one right up until his death, even having a public feud with one of the Baldwin brothers over the right of an adult bookstore to open in their hometown just a few years ago. According to Mr. Feiner, there was nothing like the threat of a riot at all in his case, but that his message was very unpopular with the authorities in town as he was calling for support for some accused blacks.

Feiner is one of my favorite cases, not because it was rightly decided, but because of Mr. Feiner, who has frequently told his side for free to audiences right up into his 80s, and is charming in that old man way, but also because of Justice Hugo Black’s dissent (which were often beautifully written, even if you disagree). Justice Black correctly stated that it is the speaker who needs to be protected by the police but also wrote these words, which I fear we are in danger now of reversing:

“A man making a lawful address is certainly not required to be silent merely because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must follow arbitrary orders. I had hoped there was no such duty in the United States.”

The Feiner case and those like it concern what is known as “the heckler’s veto,” wherein those who don’t want to hear or see speech get the call as to whether it is permissible. If the judgment against the Phelps is upheld, I am afraid that we have seen the return of the heckler’s veto and an era where unpopular speech is thwarted by the thinnest and most unconstitutional of excuses for the real reason – someone didn’t like it.