Supreme Court grants cert. in funeral picketing case


Today the Supreme Court of the United States agreed to hear an appeal from the decision of the United States Court of Appeals for the Fourth Circuit in Snyder v Phelps, which raises difficult and controversial issues about the extent to which tort liability can arise from speech by funeral picketers.

Marine Lance Corporal Matthew Snyder died in the line of duty in Iraq in 2006.  He was buried in his home town of Westminster, Maryland on 10 March 2006.  A fringe religious group called the Westboro Baptist Church picketed the funeral carrying signs such as “Thank God for IEDs”, “God hates you,” and “Semper fi fags.”  The group has picketed other funerals and appears to regard the occurrence of military casualties as some type of supernatural retribution for the United States’ tolerance of homosexuality.  The group kept at a distance of 1,000 yards ordered by local police.

The marine’s father brought civil proceedings against the family who led the picket on the grounds that it constituted an intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy.  The jury ruled in his favour and awarded $10.9 million damages, which the trial judge reduced to $5 million.  The Phelps (the family who runs the religious group) appealed to the Fourth Circuit, which reversed the judgment.

The Fourth Circuit concluded that a reasonable bystander would not interpret the group’s signs as indicating actual facts about the deceased but instead as signalling the group’s hostility towards the country and armed forces in general.  Accordingly, the court concluded that the signs constituted statements of opinion which were therefore subject to First Amendment protection and “[b]ecause the [trial court] judgment attaches tort liability to constitutionally protected speech” it should be reversed.

However, the Court made two contextual points.  First:

To paraphrase our distinguished colleague Judge Hall, judges defending the Constitution “must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.”

Second, the Court noted the power of local authorities to keep such protesters at a distance:

Nonetheless, the various states and localities, as well as grieving families, may yet protect the sanctity of solemn occasions such as funerals and memorials. Indeed, governmental bodies are entitled to place reasonable and content-neutral time, place, and manner restrictions on activities that are otherwise constitutionally protected.

The marine’s father now has an opportunity to argue before the Supreme Court that the Fourth Circuit should be reversed.  I do not have a clear view on how the Supreme Court will rule (or ought to rule).  I think Professor Volokh and others raise a valid concern about the potential for the scope of tort liability for the intentional infliction of emotional distress to have a chilling effect.  While the religious group’s behaviour here is contemptible and deeply offensive, it is nonetheless important to tread carefully when the First Amendment is at stake.  As the Fourth Circuit points out, we sometimes need to uphold the rights of vile people in order to maintain important rights and freedoms.

Of course, from a New Zealand perspective, it is less clear to me that the case would directly raise freedom of expression issues.  In the United States, private tort claims can implicate the First Amendment.  New Zealand law does not generally regard private tort awards based on the content of the speech as involving any kind of state action so as to directly engage the New Zealand Bill of Rights Act (though the right to freedom of expression plays a role in the development of common law torts such as defamation).

It is relevant to note in this context, that the New Zealand Court of Appeal has recently upheld a conviction (on a charge of offensive behaviour in a public place) for burning a flag at an ANZAC memorial service (see, R v Morse, though the case raises different issues from those discussed in this post).

UPDATE: The Fourth Circuit’s decision has quite a useful footnote summarising the litigation and legislation that has arisen from this group’s activities:

The Defendants have a substantial history of protesting at venues other than soldiers’ funerals. For example, on the day of Matthew Snyder’s funeral, they also protested in Annapolis at the Maryland State House and at the Naval Academy. The Defendants have also been involved in litigation throughout the country relating to their protests. See, e.g., Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008); Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008). As a result of such activities, approximately forty states and the federal government have enacted legislation addressing funeral picketing. See Stephen R. McAllister, Funeral Picketing Laws and Free Speech, 55 U. Kan. L. Rev. 575, 576 (2007).


4 Responses to “Supreme Court grants cert. in funeral picketing case”

  1. Chris Says:

    Jesse, you write: “New Zealand law does not generally regard private tort awards based on the content of the speech as involving any kind of state action so as to directly engage the New Zealand Bill of Rights Act (though the right to freedom of expression plays a role in the development of common law torts such as defamation)”

    What then do we make of Hosking v Runting?

  2. Jesse Says:


    In Hosking v Runting, the Court of Appeal took into account the importance of freedom of expression when deciding whether to recognise a new tort of breach of privacy. In that sense, freedom of expression guides the development of private law torts and remedies at a doctrinal level. However, I don’t think the New Zealand courts treat NZBORA as being engaged by an award of damages in a specific tortious action. In that way, I think that New Zealand law is different from the approach in New York Times v Sullivan. Of course, this topic gets into the difficult issue of the horizontal application (if any) of NZBORA.

    Am I missing something? It has been a while since I read the Hosking decision.

  3. Chris Says:

    No, sorry. I was just pointing out (obliquely) that New Zealand courts had used NZBORA in the development of torts other than defamation (privacy), which I think is interesting, given the difficult issues regarding the horizontal application of NZBORA that you note.

  4. DreamhostCoupon Says:


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