Elizabeth Trachy, Albany Government Law Review Member
A case is pending in the Supreme Court that will put to the test whether the First Amendment to the Constitution protects offensive speech just as rigorously as it protects the speech we value. On March 3, 2006, Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. At his funeral, the Westboro Baptist Church, a Kansas-based church known for its “fire and brimstone” fundamentalist religious faith, protested with signs bearing phrases such as “God Hates the USA,” “God hates you,” “Semper fi fags,” and “Thank God for dead soldiers.” Albert Snyder filed suit against the Phelps and the Westboro Baptist Church alleging five state tort claims — defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. A jury returned a verdict in favor of Snyder, awarding him $2.9 million in compensatory damages and a total of $8 million in punitive damages.
On appeal, the Fourth Circuit reversed, holding that the Phelps’ expression was protected speech under the First Amendment and was therefore not subject to tort liability. The Fourth Circuit’s decision, and the upcoming decision by the United States Supreme Court, has commanded the attention of the nation, which has widely condemned the actions of the Westboro Baptist Church. The dilemma is that the First Amendment protects speech regardless of its offensive nature and the effect it may have on its audience, because to punish offensive speech may lead to the censorship of unpopular ideas. “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”
The Supreme Court, which heard oral arguments on the case on October 6, 2010, will attempt to set aside its emotional reactions and decide the legal issue of whether Albert Snyder can recover under a speech-based tort claim for the injury he suffered as a result of the Phelps’ behavior or whether the Phelps’ egregious conduct is constitutionally protected. If the Justices cannot set their emotional responses aside, we may see a decision which crafts a “funeral exception” to the First Amendment’s right to freedom of speech, thus beginning a long journey down a slippery slope that slowly erodes the fundamental principle that the First Amendment protects individuals’ opinions—no matter how offensive or disagreeable they may be.