131 S. Ct. 1207 (2011)
Members of the Westboro Baptist Church (WBC), founded by Fred Phelps, picketed the funeral of a fallen soldier on public land adjacent to a public street behind a temporary fence, approximately 1,000 feet away from the church where the soldier’s funeral was being held. Several buildings separated the picket site from the church. The WBC notified the authorities in advance of its intent to picket, and complied with police instructions. The picketers held signs with messages such as “America is Doomed,” “Thank God for Dead Soldiers,” “God Hates Fags,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You” for about 30 minutes before the funeral began and sang hymns and recited Bible verses. They did not yell or use profanity, and there was no violence associated with the picketing. The funeral procession passed within 200 to 300 feet of the picket site and Snyder, the soldier’s father, could see the tops of picket signs as he drove to the funeral, but did not see what was written on the signs until seeing them on the news later that night.
Snyder sued Phelps and the WBC for defamation, publicity given to private life, intentional inflictions of emotional distress, intrusion upon seclusion, and civil conspiracy. The district court granted WBC summary judgment on the defamation and publicity given to private life claims. A jury found for Snyder on the remaining claims. The Fourth Circuit reversed, holding that WBC’ speech was protected by the First Amendment.
Does the First Amendment shield the church members from tort liability for picketing a military funeral?
Holding / Rule
(Roberts) Yes. Affirmed. The First Amendment is especially protective of speech like the WBC’s made in public places that deals with matters of public concern, i.e., speech that can “be fairly considered as relating to any matter of political, social, or other concern to the community” or speech that “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
Whether a statement is inappropriate or controversial is irrelevant to the question of whether it relates to a matter of public concern. A court must examine the “content, form, and context” of the speech “as revealed by the whole record.” The content of WBC’s signs “plainly relates to broad issues of interest to society at large” as opposed to matters of purely private concern, and the WBC intended to convey the speech to a broad public audience. Even if some of the messages (e.g., “You’re Going to Hell”) could be interpreted to be directed at the soldier or his family, this did not change the overall theme of the demonstration, which related to broader public issues.
WBC’s speech is also entitled to special protection because it was made in a public space. WBC did not violate any state laws, complied with local police guidance, and its picketing was peaceful and out of sight from the church. Nor does speech lose First Amendment protection simply because it is considered offensive or outrageous.
In addition, the “captive audience” doctrine, which in certain circumstances shields unwilling listeners from protected speech, does not apply here to Snyder’s intrusion upon seclusion claim. WBC stayed far away from the church, Snyder could see no more than the tops of the signs when driving there, and the picketing did not interfere with the funeral service itself.
Breyer concurred, noting what he understood to be the limited nature of the court’s holding and emphasizing that the state may in certain circumstances have the power to restrict even public speech in order to protect individuals.
Alito dissented, arguing that WBC should not have received First Amendment protection for intentionally launching a vicious verbal attack on a private individual, causing him severe and lasting emotional injury and making no contribution to public debate. Alito stated that the speech was specifically aimed at Snyder’s son (also citing to an online posting the majority did not consider), and was not protected simply because it was interspersed with speech on matters of public concern, for the purpose of increasing publicity of WBC’s views, or made in a public space.