Thursday, November 01, 2007

"Judgment Day for the Westboro Baptist Church"

That's how Craig Trebilcock, lawyer for Albert Snyder, characterized the jury award of $11 million to his client. The Westboro Baptist Church is the delightful organization that sends its members to funerals of fallen U.S. soldiers, sailors and marines, bearing signs saying "Thank God for Dead Soldiers" and "God Hates Fags." Church members believe that God kills U.S. service members serving in Iraq and Afghanistan as punishment for declining morals here at home, especially tolerance for lesbians, gays, bisexuals and transgendered persons. Apart from the peculiarity of this particular theological view---why would God, even if he does "hate fags," take out his wrath on the one institution in American life that is required to exclude such people by an Act of Congress?---there is some question about how the verdict, and criminal laws that have been enacted around the country forbidding this sort of activity at funerals, can be squared with the First Amendment.

The most obvious answer is an expansion of the principle established in Frisby v. Schultz, which upheld a ban on "targeted picketing" of, in that case, the home of a doctor who performed abortions. There, Justice O'Connor wrote for the Court: "Although in many locations, we expect individuals simply to avoid speech they do not want to hear, cf. Erznoznik v. City of Jacksonville, supra, at 210-211; Cohen v. California, the home is different." Likewise, the argument goes here, a funeral is different.

Fair enough, but the problem is that lots of places and circumstances are "different." The office---where people spend about half their waking hours, is different. For people who travel by trains, the train may be different, because one cannot simply get up and leave. Etc. The worry that the captive audience rationale of Frisby is potentially limitless is, I think, a reason to think of the imposition of criminal or civil liability for funeral picketing as a "time" and "place" regulation rather than simply a place regulation.

But even that doesn't fully work. Under the relevant case law, a content-neutral "time, place or manner" restriction in a public forum is permissible if it is reasonable and leaves open adequate alternative means of communication. The imposition of liability in cases of this sort isn't exactly content-neutral. There would be no liability for someone holding up a sign saying, for example, "Thank you for your ultimate sacrifice."

So, were the First Amendment rights of the Westboro Baptists violated? I certainly want to say no. Perhaps we might treat what they did as a kind of trespass: During a funeral, the area around the funeral is in the possession of the mourners, and someone who comes into that area with the intent to provide deep offense and hurt commits a very serious trespass. Or whatever. Any doctrine that would protect "Thank God for Dead Soldiers" at a soldier's funeral would simply discredit the First Amendment itself.

Posted by Mike Dorf

18 comments:

Paul said...

I have to ask - in most part because I am woefully ignorant of 1st Amendment jurisprudence - why the 1st Amendment has any application here at all. This was not, as I understand it, an injunction imposed by the state on the church prohibiting future speech. This was simply the imposition of civil liability under a generally applicable state law. To my (again, admittedly limited) knowledge, the 1st Amendment does not insulate the speaker from the consequences of his/her/its speech. It seems to me that WBC remains free from government coercions prohibiting it from "protesting" at funerals.

Michael C. Dorf said...

In response to Paul: Ever since NY Times v. Sullivan, the First Amendment has been held to limit the circumstances under which civil damages can be awarded on the basis of speech. Hustler v. Falwell is the most colorful example of this principle in the Supreme Court case law.

Paul said...

Don't both of those cases simply stand for a very limited proposition regarding defamation of public figures and not a broadly applicable principal that the 1st Amendment limits application of civil damages?

Sobek said...

I don't believe the First Amendment has any application to intentional infliction of emotional distress. A lot of speech can be and is proscribed, consistent with the First Amendment.

Common law fraudulent misrepresentation necessarily (I think -- I can't imagine a situation where it doesn't) involves speech, and is in no way affected by the First Amendment. Assault can never be just speech, but can be speech accompanied by action. Even defamation is not protected by the First Amendment, although the First Amendment alters the burden of proof and scienter element in certain cases.

Even under the First Amendment, reasonable time, manner and place restrictions are permissible. I can't think of any reason why restrictions on shouting obscenities through a bullhorn at a funeral wouldn't be reasonable (although if the law were designed to stop only a certain kind of message, it would not be, and the First Amendment would clearly apply).

Kit said...

From an AP article: "[Defense attorney] Katz told jurors Tuesday the protests took place 1,000 feet away from St. John Catholic Church, where the funeral was held, down a hill and out of sight and hearing from participants."

If this is true, then I think Phelps's group has a much stronger first amendment claim. Even if the area around a funeral is "in the possession of the mourners," how far should that area extend? I think that being far enough away to be out of sight and hearing would be far enough away to not be trespassing on the mourners' protected area.

Michael C. Dorf said...

Hustler v Falwell IS an iied case. You can read it at http://laws.findlaw.com/us/485/46.html

More broadly, my claim is not that free speech doctrine bars all torts that turn on expression but that free speech doctrine limits state tort law. This is not my opinion. I am not, in this respect, expressing a view about what free speech doctrine should protect. I am merely reporting what the cases hold.

AF said...

Hustler is about public figures; the soldier's parents are private figures. This might be a more straightforward way to square the verdict with the First Amendment, rather than looking to picketing-ordinance cases or trespass law.

Sobek said...

"Hustler v Falwell IS an iied case."

I didn't realize. I thought it was defamation, based on the suggestion that Falwell was a drunk and practiced incest.

My reading of Nevada's IIED law is that it's extremely hard to state a claim. But none of the state cases have addressed a first amendment issue.

I agree with Kit that if the protestors were 1,000 feet away, the First Amendment "time, manner, place" argument gets weaker.

I also agree with AF that Hustler did not deal with private persons. I remember my First Amendment Prof. asking what we thought the result would have been had Falwell's mother filed the suit, and stating he didn't know the answer.

egarber said...

Hustler v. Falwell is the most colorful example of this principle in the Supreme Court case law.

Wasn't a twist there that Falwell was a public figure -- meaning that he couldn't claim emotional distress because of his status?

I'm guessing that means recourse is more widely available for private individuals who aren't seeking publicity.

egarber said...

Ooops. should have read the comments first. my last post was already covered. That's what I get when I decide to post from a bberry. sorry.

KipEsquire said...

Since this was a private tort action, not a case of prior restraint or criminal penalty, I would submit that Frisby v. Schultz is inapposite. In fact, it seems to me that the First Amendment is really not very relevant at all here.

Michael C. Dorf said...

I've written a FindLaw column on the free speech issues. It will go up next week. (I conclude, surprise surprise, that there's no good first amendment objection.)

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