The Phelps Gang and the First Amendment

I don’t believe the First Amendment forgives intentional tort against private citizens, and I think the Supremes are going to come to that very conclusion in the case of Snyder v. Phelps. Good on em I say.

Here are the facts of this case. Matthew Snyder, a U.S. Marine, was killed in action in Iraq. The Westboro Baptist Church has a practice of picketing the funerals of soldiers killed in action because they claim their deaths are God’s retribution for tolerance of gays in the USA. (I believe Phelps, like a number of Evangelical and some Jewish sects, believes a righteous society would kill all its queers.) Snyder’s funeral was held in a Catholic Church in Maryland with full military honors and the Phelps Gang set up a required distance from the front of the church and protested. Mr. Snyder Senior, to avoid seeing the protesters, rerouted the funeral procession to use an alternative church door. None the less, a media circus ensued which was generally recognized to have disrupted the funeral.

The Phelps Gang admitted that it specifically targeted Snyder because it was seeking revenge on Marines because they have physically assaulted the Phelps gang at previous protests. The Phelps gang carried a number of signs. Some of them addressed general themes of “public interest,” such as “God Hates Fags,” and “Priests Rape Boys.” They also carried signs thought to be specifically aimed at the decedent, such as “God Hates You,” and “You’re going to Hell.” Other signs graphically depicted gay male sex.

In addition, after the funeral was thus disrupted, the Phelps Gang published an “Epic Poem” on their website called “The Burden of Marine Lance Cpl. Matthew A. Snyder.” It stated, in part:

God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a duty to prepare that child to serve the Lord his God—period! You did just the opposite—you raised him for the devil. . . Albert and Julie ripped that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

The Phelpses proclaimed that God:

“Killed Matthew so that his servants would have an opportunity to preach his words to the U.S. Naval Academy at Annapolis, the Maryland legislature, and the whorehouse called St. John Catholic Church at Westminster where Matthew fulfilled his calling.”

These words caused Mr. Snyder Senior to barf when he read them, and he ultimately suffered a mental breakdown.
The tort of intentional infliction of emotional distress has four elements: (1) the defendant must have acted intentionally or with reckless disregard to the way his actions affect others; (2) the defendant’s conduct must be extreme and outrageous; (3) the conduct must be the cause (4) of severe emotional distress. The Federal District in this case found the Phelps Gang liable for intentional infliction. The Fourth Circuit reversed on First Amendment grounds.

The key here is a line of First Amendment cases that run from NY Times V. Sulllivan, to Jerry Falwell v. Hustler. The NYT case, studied by every journalism student, held that a public figure cannot be libeled even if matters said about him/her were factually incorrect if there was no malicious intent on the part of the newspaper. Hustler said a public figure cannot claim intentional infliction of emotional distress even if things said about him are not true regardless of how outrageous, if they were none-the-less satirical. (Hustler published a fake interview with Falwell in which he confesses having had sex with his mother in the outhouse.) Public figures, the courts have concluded, have inserted themselves into the public debate and should be willing to take more heat than the average citizen. Moreover, public figures have access to the public forum in ways that private citizens do not, and thus are better able to defend themselves.

In Snyder, the Fourth Circuit added an entirely new rule. Reading Hustler the court concluded that The Phelps Gang was absolutely protected by the first amendment and that there is a complete tort immunity for speakers of “rhetorical hyperbole.” Thus, the Fourth Circuit concluded, it is not important whether Snyder is a private citizen, as opposed to a public figure.

The Fourth Circuit analysis completely misconstrues Hustler, and completely misunderstands the basic approach of NYTimes, which balances the constitutional rights of the parties against the public’s interest in robust debate and information transparency. Hustler concludes that the public’s right to make fun of public figures is more important than the public figure’s right to dignity. There is not much doubt that the Hustler case would have had a different result if Jerry Falwell had been a country preacher with no national standing.

There is no rational basis for failing to protect the private citizen standing of the Snyder family from being targeted by fanatical maniacs with dubious claims to having raised issues of important public interest. Nothing about the debate of the rights of gay citizens is advanced significantly by their choice of military funerals as a focus for their protests. More importantly, specific attacks on the Snyder family cannot be said to have in any way advanced the public debate. The Snyders themselves had never inserted themselves into the public arena on this or any subject, Cpl. Snyder was not gay, had not made claims about gay persons or otherwise made claims that would make him a target for this protest.

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