Thoughts on the Costs of Free Speech

“And thus the native hue of resolution is sicklied o’er with the pale cast of thought.”

My older son recently asked me my opinion in the case of Snyder v. Phelps. Pleasantly surprised that he was taking any interest whatsoever in any Supreme Court cases (for reasons I subsequently discovered and will explain below), I had to admit I had neither an opinion nor, truth be told, even a rudimentary knowledge of the facts of the case. He explained then that the Phelps in question was the notorious disbarred attorney and Westboro Baptist Church pastor, Fred Phelps.

Ah, yes, Mr. Phelps and his merry band of homophobic religious fanatics. I explained to my son that I have paid about as much attention to Phelps, et al. as I do to the Jerry Springer Show or, for that matter, to most of the more politely nuanced but no less bigoted or better supported opinions of some of our occasional commenters here. Anyway, for those who share my rational ignorance in such matters, here is an edited version of the inerrant Wikipedia’s statement of the case:

On March 10, 2006, WBC picketed the funeral of Marine Lance Corporal Matthew A. Snyder, who died in combat in Iraq on March 3, 2006.The Snyder family sued Fred Phelps for defamation, invasion of privacy, and intentional infliction of emotional distress..On October 31, 2007, WBC, Fred Phelps and his two daughters, Shirley Phelps-Roper and Rebekah Phelps-Davis, were found liable for invasion of privacy and intentional infliction of emotional distress. A federal jury awarded Snyder’s father $2.9 million in compensatory damages, then later added a decision to award $6 million in punitive damages for invasion of privacy and an additional $2 million for causing emotional distress (A total of $10. 9 million). The organization said it wouldn’t change its message because of the verdict.

The lawsuit named Albert Snyder, father of Matthew Snyder, as the plaintiff and Fred W. Phelps, Sr.; Westboro Baptist Church, Inc.; Rebekah Phelps-Davis; and Shirley Phelps-Roper as defendants, alleging that they were responsible for publishing defamatory information about the Snyder family on the Internet, including statements that Albert and his wife had “raised [Matthew] for the devil” and taught him “to defy his Creator, to divorce, and to commit adultery.” Other statements denounced them for raising their son Catholic. Snyder further complained the defendants had intruded upon and staged protests at his son’s funeral. The claims of invasion of privacy and defamation arising from comments posted about Snyder on the Westboro website were dismissed on First Amendment grounds, but the case proceeded to trial on the remaining three counts.

In his instructions to the jury U.S. District Judge Richard Bennett stated that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements, and that the jury must decide “whether the defendant’s actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.” …

WBC sought a mistrial based on alleged prejudicial statements made by the judge and violations of the gag order by the plaintiff’s attorney. An appeal was also sought by the WBC. WBC has said that it is thankful for the verdict.

On February 4, 2008, Bennett upheld the ruling but reduced the punitive damages from $8 million to $2.1 million. The total judgment then stood at $5 million. Court liens were ordered on church buildings and Phelps’ law office in an attempt to ensure that the damages were paid.

An appeal by WBC was heard on September 24, 2009. The federal appeals court ruled in favor of Phelps and Westboro Baptist Church, stating that their picket near the funeral of LCpl Matthew A. Snyder is protected speech and did not violate the privacy of the service member’s family, reversing the lower court’s $5 million judgment….

A writ of certiorari was granted on an appeal to the Supreme Court of the United States….

The Court hears oral argument this week.

If you are interested in analysis of the legal arguments you are welcome to look elsewhere. Indeed, you need look no further than the link to the various Amicus briefs submitted. (Does it or should it bother you that 42 senators and 48 states filed briefs essentially in support of restricting Phelps & Co.’s freedom of speech? Does it or should it bother you that the overwhelming majority of legal scholars, the ACLU and the Anti-Defamation League contend in effect that the First Amendment bars the Snyder family from any legal remedy here?)

You can get into the legal weeds of “captive audiences” and “public figures,” the legal pedigree of the tortious infliction of emotional distress and so forth, but I am frankly more interested in how a case like this strains the moral intuitions of liberals and conservatives alike. Even among liberals, one has to be a bit of a free speech fanatic not to see at least some merit to the notion that a civil respect for the deceased and his survivors requires placing some limits on “expressive conduct” so outrageous that it “shocks the conscience.” Then again, isn’t it generally presumed to be a core conservative position that the state has no business interfering in the free exercise of religion or, at the very least, religious speech?

For that matter, is there an obvious libertarian position here?

I don’t think so. And the reason I don’t is because limiting the extent of state control over individual conduct does not per se go to what rights and liberties such individuals are to enjoy vis a vis each other. That is, while it is clear on even the most cursory examination of the First Amendment that the state could not enjoin or punish Phelps and the WBC for their expressive conduct, it by no means follows that such conduct should not be seen as in infringement of the private privacy rights of the Snyder family. Maybe yes, maybe no, but not obviously in either case, let alone necessarily even on strict libertarian grounds. Private interests conflict. Law aside, private moral rights conflict. How the law is to sort out and balance these private interests and moral rights is almost always an open question even for libertarians.

On balance, although I will not offer my argument for it here, I grudgingly must side in this case not so much with Phelps but against Snyder . But I also acknowledge that doing so deeply troubles me. Just as Irving Kristol once defined a neoconservative as a “liberal mugged by reality,” one’s dispassionate commitment to principles depends at least to some extent on whether one’s own ox is being gored by those principles. So I promised to explain my son’s unexpected interest in this particular point of constitutional law.

Yesterday morning I drove him to the airport with orders to report to the Marine Officer Candidate School at Quantico, Virginia. The course is deliberately grueling both physically and psychologically and I have no idea whether he will complete it successfully and accept a commission or voluntarily drop or involuntarily be dropped prior to graduation. The decision was entirely his, the reasons for that decision were entirely his, and his mother and I can only respect his autonomy, worry about him and wish and pray for his safety and success. But the world is not a safe place these days for Marine junior officers and it would be dangerously naive to think otherwise.

There are, of course, hundreds of thousands of parents today whose sons and daughters have joined the military and been sent in harm’s way. And as many or more parents of “the enemy” who would grieve the death of their children just as deeply. On a personal level it is entirely irrelevant what one thinks of the justice or wisdom of U.S. foreign policy or the overall cost/benefit analysis of our Forever War on Terrorism™ when the issue at hand is the life of one’s own child who has volunteered for military service.

Thus I find myself suddenly and unexpectedly having grounds not only to sympathize but also to empathize in some small way with the Snyder family. It doesn’t change my convictions regarding how I believe the Court should rule, but the prospect of having unintentionally to support Phelps as a result does turn my stomach.

This entry was posted in Family and Children, GLBT issues, The Courts. Bookmark the permalink.

25 Responses to Thoughts on the Costs of Free Speech

  1. J sub D says:

    (Does it or should it bother you that 42 senators and 48 states filed briefs essentially in support of restricting Phelps & Co.’s freedom of speech? Does it or should it bother you that the overwhelming majority of legal scholars, the ACLU and the Anti-Defamation League contend in effect that the First Amendment bars the Snyder family from any legal remedy here?)

    Yes and No. Defending civil rights often puts one in the uncomfortable position of defending the most loathsome people in society. This observation is not new.

    As much as I despise Phelps and his family (I don’t believe the jerk has enough followeres to call them a congregation) I firmly believe that if offensive, inappropriate or hateful speech is punishable, freedom of speech quickly becomes “you can talk about the weather and the Lion’s game without fear (unless you call the QB a pussy).

    Would an abolitionist in 1835 have been civilly liable for calling slaveowners servants of Satan and that their deaths (even the children’s) in Nat Turner’s rebellion was God’s divine punishment?

  2. I’m not sure how I would come down on the issue, and I know most of the facts only through the Wikipedia article Mr. Ridgely quoted from. But as an answer to J sub D, I might say that even with something that (to me) is so unambiguously evil as slavery, it would have been inappropriate for abolitionists to harangue the attendees of funerals of Nat Turner’s rebellion. Whether and at what point (if any) the inappropriateness permits state suppression of speech of such activities, I’m not sure. However, I am inclined to side with Mr. Ridgely, with all his reservations.

    (For what it’s worth, and as an aside, abolitionists were not allowed to circulate their tracts through the postal mail, which to my mind is a clear violation of the first amendment by the federal government.)

  3. buddyglass says:

    Speaking of property rights…

    Are cemetaries not able to “just say no” to Phelps on the grounds that they’re public spaces and not private?

    Perhaps some argument could be made that, while the cemetary grounds themselves are a “public space”, the area immediately surrounding a burial ceremony is essentially private and thus not subject to any free speech guarantee.

  4. Heidegger says:

    The utterly despicable, putrid, vile, repulsive, walking human excrement, Fred Phelps, and his coterie of like-minded moral imbeciles does not have a constitutional right to be within earshot or eye shot of a funeral honoring and burying a fallen soldier. And this other equally offensive moral reprobate, Margie Phelps, “a daughter of the pastor of the Westboro Baptist Church and the lawyer representing her family members at the Supreme Court, said that if the justices reinstate the $5 million judgment to Snyder, anyone who says anything upsetting to a mourner “is subject to a crushing penalty.”

    What??? Could anyone be so heartless that they would want to say anything “upsetting to a mourner?” And who would want to?

    Godspeed to your son, DAR, your wonderful, honorable, courageous son. Our nation is forever grateful for his service and for all the other men and women who protect and defend us and our liberties. It’s not a cliche. It’s a 200+ year reality. Chomsky be damned, we are the good guys.

  5. AMW says:

    God forbid Phelps and his crew ever get the opportunity to cross Ridgely. But if they do, I hope someone gets footage of DAR exercising his civil liberties on Phelps’ chin.

  6. Heidegger says:

    AMW–LOVE your posts—especially this one! Definitely not a pretty sight, a DAR encounter with the Phelps clan with their glass chins and all. Ouch! I shouldn’t say this, but why couldn’t Holder pull a Reno on this cult? Kidding….well, sort of.

  7. James Hanley says:


    First, a lot of cemeteries are public, so, no they couldn’t ban the Phelpses.

    Private cemeteries might find it difficult, too, because they are generally open to the public without restriction. But I think a private cemetery could pass a rule of general applicability limiting anyone not invited to a funeral from getting within a certain distance of a funeral party, banning bullhorns, signs larger than a certain dimension, etc. You might not be able to keep the Phelpses out, but you could legitimately minimize their ability to disrupt.

    It’s also possible that a law of general applicability prohibiting the disruption of a funeral might pass muster, if narrowly drawn. It couldn’t prohibit protests entirely, but again might ensure they’re not too disruptive. That would fall under the “time, place, and manner” doctrine that allows government to place some reasonable limitations on how and when you exercise your right to free speech. E.g., you have a constitutional right to protest the war, but you don’t have a constitutional right to drive through my neighborhood with a loudspeaker at 3 in the morning to protest it.

  8. buddyglass says:

    Maybe they could temporarily lease the burial area to the party doing the burial, thus making that small portion of the cemetary “private property” for the length of the ceremony?

    But yeah- seems like one could draw up some generally applicable rules that would almost entirely de-fang Phelps’s ability to protest.

  9. Matty says:

    Maybe they could temporarily lease the burial area to the party doing the burial, thus making that small portion of the cemetary “private property” for the length of the ceremony?

    I have a vague feeling there is a precedent on this that stops or limits property being transfered from public to private purely to prevent what would be protected speech on public property. Does anyone have more infromation?

  10. James Hanley says:

    That’s an interesting concept. I know public parks often lease pavilions for cookouts, and only the party that leases it has the right to use it on that day.

  11. Seamus says:

    I thought the Supreme Court had already pretty much ruled, in the Hustler Magazine v. Falwell case, that the First Amendment guaranteed you the right to be grossly offensive and to use hateful and hurtful speech that violate any civilized norms of behavior, as long as you limited yourself to expression rather than conduct.

  12. D.A. Ridgely says:

    Based on current case law as I understand it (which is to say, probably not very well), I suspect any attempt to temporarily “privatize” public spaces would have to serve some legitimate state purpose, perhaps even at the strict scrutiny level, other than what amounts to pretextual prior restraint on free speech as well as, arguably, infringement of free assembly and free exercise rights.

    That said, it would not surprise me if the current Court did carve out some sort of limited exception here.

  13. Chris says:

    I wonder if this case is at all relevant.

  14. James Hanley says:


    Somewhat relevant, but not directly. The nature of a campaign rally is substantially different from that of a private funeral. Reading (quickly) through that decision, I was a bit surprised at what I did not see in it. If a campaign event is something that effectively requires a ticket for entry–whether they are purchased or the result of being specifically invited–then the event can almost certainly be effectively closed to non-ticket holders. But it sounds like the campaign rally in that case was an “open to the public” event, in which case it was even more of a public forum than the judge let on in the ruling.

    If the candidate had rented an open campus quad, for example, where entry and exit could not be easily controlled, probably no one would have assumed they could exclude the students with the opponent’s t-shirts. The auditorium is not substantively different, but the ease of controlling entry encourages people to make the effort to do so. It makes no legal difference, though (unless those extra students put the place beyond capacity, and you can exclude them on safety grounds).

    I don’t think any judge would rule that renting a pavilion at the park for a family reunion would constitute a limited public forum. And I think maybe the funeral case would be more similar to that. But just as the municipality might not be able to keep all other people out of the park, they could prevent them from being to disruptive to the family reunion.

  15. Charles Wolverton says:

    “Does it … bother you that 42 senators … filed briefs essentially in support of restricting Phelps & Co.’s freedom of speech?”

    Bother, yes; surprise, no.

    Notwithstanding the argument of the recent post re non-judicial branches’ obligation to “uphold the Constitution” and frequent congressional pandering to voters based on supposed devotion to same, we have as precedent the Schiavo travesty and Salazar v Buono – the case, possibly the motivation for Matty’s “vague feeling”, in which our principles-free congress passed a bill intended to subvert a possible ruling of unconstitutionality of government-endorsed religious activity on public land by “converting” it to private; the opposite of Matty’s scenario, but the (lack of) principle is the same.

    “At last, sirs and madams, have you no shame?” I believe the answer is obvious.

  16. ppnl says:

    Instead of seeing these things as a cost of free speech maybe it would be better to see them as an opportunity for free speech. Hold a Koran burning party. Then toss some bibles on the flames. Next add the origin of species and a copy of the constitution and the declaration of independence. Then an American flag.

    Its all sympathetic magic. We are worshiping things rather than following the underlining principles. People should get over it.

    The fact is Phelps isn’t especially despicable. He is pretty average despicable. He isn’t worth the time wasted thinking about him.

  17. OFT says:

    Instead of seeing these things as a cost of free speech maybe it would be better to see them as an opportunity for free speech. Hold a Koran burning party. Then toss some bibles on the flames. Next add the origin of species and a copy of the constitution and the declaration of independence. Then an American flag.

    What you are describing is not just words, but actions that subvert public order. The framers punished these actions. Knowing what is in the Quran and Hadith, I still wouldn’t burn it. It isn’t the Christian thing to do.

  18. tom van dyke says:

    A look at the famous blasphemy case People v. Ruggles shows that the core issue was disturbing the peace, not calling Jesus a bastard, although Ruggles did.

  19. Mark Boggs says:

    Oh, to be a child raised under the nurturing thumb of OFT!!

  20. D.A. Ridgely says:

    A transcript of today’s oral argument here.

  21. Michael Enquist says:

    I’m with ppnl, who let the air out of the balloon quite nicely.

    Thank you, sir or ma’am.

  22. ppnl says:

    Yes OFT but would you draw Mohamed? If enough people get together and agree to be unmitigated dicks they can prevent you from doing anything in the name of public order. At some point maybe it is not only your right but your moral duty to subvert public order.

  23. James Hanley says:

    OFT is stuck in 1789, and apparently has never heard of Texas v. Johnson.

    And how would burning those things “subvert public order”? It only would if people choose to act in a disorderly manner in response. In other words, OFT supports the heckler’s veto.

    Yet somehow he manages to persuade himself that his position is superior, just because some guys 200 years ago–he believes without proof–would have held it.

  24. ddd says:

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  25. Wow that was strange. I just wrote an extremely long comment
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