Snyder v Phelps

The case of Snyder v. Phelps offers an array of legal issues in search of clearer legal standards. The original lawsuit by plaintiff Albert Snyder, father of the deceased soldier Matthew Snyder, against defendants Fred W. Phelps, his Westboro Baptist Church, and other church members for their picketing of Matthew’s funeral and their website’s “epic” account of Matthew’s life, pleaded five tort causes of actions under Maryland law for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. The district court dismissed the defamation and publicity claims. The jury found the defendants liable on the other three theories and awarded plaintiff $2.9 million in compensatory damages and $8 million in punitive damages. The district court remitted the punitive damages award to $2.1 million. 

On appeal, the Fourth Circuit reversed, ruling that the First Amendment required a judgment for the defendants as a matter of law “[b]ecause the judgment [incorrectly] attaches tort liability to constitutionally protected speech.” Preaching the doctrine of constitutional avoidance, however, a concurrence by Judge Shedd concluded that there was insufficient evidence to establish tort liability under Maryland law. There was no intrusion upon seclusion because the defendants never disrupted the funeral service, confronted the plaintiff, called the websites to his attention or intruded upon Snyder’s privacy in any way. Moreover, Phelps’ conduct was not sufficiently “outrageous” to meet the requirements of the tort of intentional infliction of emotional distress. In Maryland, intentional infliction of emotional distress requires the element of extreme and outrageous conduct. Despite the jury’s finding for Snyder on this tort, Judge Shedd concluded that Phelps’ conduct in protesting the funeral “simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law.” Because the defendants had not raised the sufficiency of the evidence claims in their appeal, however, the other judges rejected Shedd’s reasoning, held the appellants had waived the evidence argument, and decided the case on First Amendment grounds. 

Snyder’s petition for a writ of certiorari presented three questions for the Supreme Court to decide:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and peaceful assembly?

3. Does an individual attending a family member's funeral constitute a captive audience who is entitled to state protection from unwanted communication?

The three questions presented and the underlying opinions suggest that the case is about religion, tort law and free speech. Snyder v. Phelps concerns tort law and free speech, and offers the Court an opportunity to clarify the constitutional law of defamation and privacy lawsuits involving speech. But it should not be a case about religion.

Question 2 forces us to consider what role religion played in the case and to conclude that religion should be irrelevant to the outcome of Snyder v. Phelps. The district judge rejected defendants’ argument that their conduct could not be subjected to tort liability because the Free Exercise Clause of the First Amendment protects their religion from the jury’s review. The court relied upon the traditional First Amendment doctrine that although the freedom to believe is absolute, the government may regulate religious conduct. Because “this case involves balancing [religious freedom] rights with the rights of other private citizens to avoid being verbally assaulted by outrageous speech and comment during a time of bereavement,” the court rejected a Free Exercise defense.

 The defendants reasserted their religious freedom argument in their appeal to the Fourth Circuit, arguing that [t]his case punished defendants' religious belief that they are prophets and God’s elect; their        belief in God's hate; and their belief in the doctrines of reprobation, election and predestination. The jury should not have had the opportunity to put the official governmental stamp of disapproval on defendants' religious beliefs. The Fourth Circuit, however, did not address the religious freedom argument, dismissing the case instead under the First Amendment’s Free Speech Clause.

In rejecting defendants’ free exercise defense, the district court quoted Justice Antonin Scalia’s opinion in the leading Free Exercise decision, Employment Division of Oregon v. Smith: We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

The district court’s conclusion is unassailable. The case is a reminder of the importance of Smith. The Westboro Baptist Church should be treated like all other picketers. Matthew Snyder’s funeral at a Catholic Church should be treated like all other funerals. Tort law should not be skewed for or against religious plaintiffs and defendants. “Laws . . . are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can [Snyder or Phelps] excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Snyder v. Phelps involves tort law and free speech. Unfortunately, the district court repeatedly referred to defendants’ “religious opinion” in deciding the free speech issues. The word “religious” should be deleted and ignored. The outcome depends purely upon how constitutional free speech rights affect state tort law.

            Within the next two weeks Cardozo Law Review will publish essays by me and other First Amendment scholars about how the speech issues in the case should be resolved. For now it is important to insist that the case should not involve any special rights for religions.