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The Westboro Church and Justice Alito: the other side of the story

By Edward Zelinsky

It is noteworthy when eight ideologically diverse justices of the U.S. Supreme Court all decide a First Amendment case the same way. Thus, Snyder v. Phelps is a noteworthy decision. The Westboro Baptist Church is well-known for its demonstrations at military funerals. Indeed, the Westboro Church, led by (and, some say, principally consisting of) the Phelps family, has the rare distinction of having been denounced by both Jon Stewart and Mike Huckabee.

Members of the Westboro Church demonstrated near the Maryland funeral of Marine Lance Corporal Matthew Snyder, killed in action in Iraq. Mr. Albert Snyder, the corporal’s father, sued the Westboro Church and its members for various torts including intentional infliction of emotional distress. Mr. Snyder prevailed in a jury trial. In invalidating the jury’s verdict, the U.S. Supreme Court, except for Justice Alito, said that the Church and its members were exercising their free speech rights in a constitutionally-protected fashion.

As the Court described the facts of the case, it is hard to disagree with this conclusion. According to those facts, the Westboro Church and its members told the local authorities of their intention to demonstrate at the time of the Snyder funeral and “complied with police instructions in staging their demonstration.” The Westboro demonstrators stayed “behind a temporary fence…approximately 1,000 feet from the church where the funeral was held.” The demonstrators went neither to the church where the funeral was held nor to the cemetery, and were nonviolent throughout their demonstration.

On these facts, the message conveyed by the Westboro Church is obnoxious (“God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers”) but constitutionally protected.

The problem is: Those were not all the facts of the case. Only Justice Alito confronted this reality. After the funeral, a member of the Westboro Church posted on the Church’s website a hate-filled message aimed specifically at the Snyder family. Among its other assertions, this website message accused Mr. and Mrs. Snyder of having “raised [Matthew] for the devil.” The Snyders, the web message continued, “taught Matthew to defy his Creator, to divorce, and to commit adultery.” Then the Snyders sent their son “to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life.”

Media accounts of the Court’s decision have largely ignored this web-based attack on the Snyders. Media accounts have also largely ignored the eight Justices’ acknowledgment that, if this web-based attack is considered, Westboro and its members may indeed have stepped over the line, forfeiting First Amendment protection by this vicious internet attack on the Snyder family. As Chief Justice Roberts put it in a footnote to his majority opinion, this “Internet posting may raise distinct issues in this context,” issues which the Court declined to consider because of the failure of the Snyders to press this point in their petition to the high court.

Justice Alito disagreed with his colleagues in his willingness to confront the facts of the case as they were presented to the jury: Westboro and its members did not just engage in lawful picketing at the time of the Snyder funeral, but they subsequently posted an internet screed aimed personally at the Snyders, a screed the eight other justices disregarded.

There are two arguments that Snyder v. Phelps is a sound decision, despite the stylized facts on which the decision is premised. First, it is good for the Court with near unanimity to reaffirm basic constitutional values. The protection of speech we abhor is one of these. Second, important and new issues often need to percolate in the lower courts and among legal commentators before the Supreme Court decides. The First Amendment implications of internet communication is arguably such an issue.

On the other hand, the eight justice majority made Snyder v. Phelps an artificially easy case by punting on the tough issue, i.e., was the post-funeral website posting protected by the First Amendment? Only Justice Alito confronted this issue and held that it was not.

It is instructive to consider possible variations on this scenario as they could arise in the future. Suppose, for example, that an anti-abortion group demonstrates, similarly to the Westboro Church members, 1,000 feet from an abortion clinic behind a temporary fence and in accordance with police instructions. Suppose further that these demonstrators make no effort to enter the clinic. After the demonstration, these abortion opponents post a vicious attack on their website, mentioning by name the doctor who performs an abortion and the patient who receives one.

My preferred resolution of this hypothetical case, and the Westboro situation as it actually happened, would be to preclude the jury from hearing about constitutionally-protect speech (that’s what it means to be constitutionally-protected) and for the jury to hear only about the website attack which presumably does not enjoy the same First Amendment protection as the demonstration. I would also be inclined to preclude punitive damages in such settings.

As a matter of full disclosure, I note that Justice Alito was my law school classmate and that I supported his confirmation, just as I supported the subsequent confirmations of Justices Sotomayor and Kagan. I have disagreed with Justice Alito’s decisions in some cases (e.g., District of Columbia v. Heller) and have agreed with others (e.g., Citizens United v. Federal Election Commission). At the end of the day, I suspect that Justice Alito and I would have come to different conclusions about the ultimate resolution in Snyder v. Phelps.

However, the fundamental point remains that only Justice Alito recognized Snyder v. Phelps for the difficult case that it really was. The Snyders were not public figures but grieving parents who were viciously attacked by name through a website available to the world. Perhaps we want the internet to be a free-fire zone where anything goes including this type of personal attack on private citizens who did nothing to put themselves in the public domain. Perhaps not. The issue, dodged in Snyder v. Phelps, cannot be avoided indefinitely. Justice Alito was right to begin the conversation now.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears here.

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Recent Comments

  1. Zach

    I’m having a hard time understanding how the Internet posting isn’t covered by the same first amendment right. Yes, the post is disgusting and an attack on the family, but it’s still speech and deserves the same free speech protections that any other publication would get.

  2. Brian

    Because the posting identifies the family by name, and makes specific accusations that are damaging to the reputation of the family. It is therefore slander, and excepted from protection under the 1st Amendment.

  3. J

    None of the other justices mentioned it precisely for the reason you mentioned: the issue was not raised in the SCOTUS briefs (though it was discussed at the Fourth Circuit level), and probably for good reason – they likely would have lost on the state tort claims for the internet posting. The majority decision at the Fourth Circuit level found the “Epic” posting to be rhetorical hypoerbole (citing Milkovich – the “opinion” decision), and judge Shedd noted in his concurrence that since the epic was discovered several weeks after the funeral protests, suggesting that it was just too remote to support the state tort claims (specifically, the intrusion upon seclusion and IIED claims). If the Supreme Court relied at all on the district court and fourth circuit factual findings in addressing the epic, it seems pretty apparent that Snyder would have lost on it as well.

  4. di falco, bob

    yours by Zelinsky is a takeoff of the error by the lawyer for Snyder (Snyder v. Phelps) who thought free speech was the issue, but next below is an even higher issue that may be addressed by Alito.

    it is important, and so USA Congress has made into law, that he who fights the battle face to face kill or be killed shall be recognized and respected same as is the United States….

    the issue on Ex Parte Motion to Alito is that phelps, and his congregation, and their “church”, put their selves up as public figures, and falsely claimed free speech whereas were desecrating the United States in a criminal offense and were in criminal violation of the United States Code as to wrongful use of a Church for and in political ways and in criminal breach of contract as to Internal Revenue Service Taxes owed

    the bottom line is that the founder phelps is a criminal trying to hide behind his bogus church which is a church in name only while he insults etc and otherwise violates laws of
    The United States and Marines who were killed in combat for The United States……

    since he, they, do this frequently they should be boiled in oil, quartered, shot, etc, and their property confiscated under the RICO Statute or a similarity

    anyone reading this case should know that when a United States Marine has been killed in action, at least a Purple Heart for valor rests upon his body and his immediate family and his family and he and the United States have the right to bury his dead body, with the USA Flag in attendance, in peace

    Alito should put phelps and his thugs out of the community into a jail, in Mexico, for life, better would be summary execution but USA has given up old fashion rights and remedies.

    the supreme court en banc, absent Alito, awarded Phelps millions of dollars for desecrating the Flag, etc as above,

    a reader should note that Alito is the only Federal Judge who knows reality and how to respond to the realities.

  5. di falco, bob

    next above, mine about Alito and he handling the Snyder v phelps fiasco, i forgot to mention, and would like to mention here, that i am a United States Marine Corps Purple Heart ’51
    who soon as i can will come back from the dead and take care of whatever Alito does not allow himself to do about Phelps and other garbage

  6. di falco, bob

    and reference my two notes next above, i want a reader to know that i made the Motion to Alito on behalf of the United States who no one other than Alito regards in high esteem

  7. di falco, bob

    many thanks for publishing mine above, probably will be the only forum of publication on this issue

    because USA no longer holds itself in high esteem rather they
    give self away to he who tells the weirdest story, like obama does, the voters thought he was true and then found he was only a used car salesman with a silk tie and shiny shoes, a facade

    getting back to Snyder, i invite you a reader to write to the Clerk of Supreme Court and ask for a copy of mine to Alito regarding above circus by the court en banc absent alito, you will be surprised, awakened, perhaps entertained, but those who are serious students shall see is a door opening, perhaps
    to resume what USA was and ought to have become

    as a Purple Heart Marine i have to confess is not only the pleasure of serving my country but the fun of knocking off enemies as used to be done in our wild west shootem up days
    —- and as was then so is now, the good guys win the bad guys lose, USA takes another step forward, all is not lost but awaits the final curtain soon to come …

  8. JoeMama

    Brian says:
    April 4, 2011 at 3:57 pm

    Because the posting identifies the family by name, and makes specific accusations that are damaging to the reputation of the family. It is therefore slander, and excepted from protection under the 1st Amendment

    Defamation based on the internet posting was one of the claims in district court. The court granted summary judgment on that claim, holding the posting was not defamatory as a matter of law. This ruling was never appealed and therefore not an issue in the 4th Cir or the Supreme Court. The only claims at issue on appeal were infliction of emotional distress, intrusion on seclusion, and conspiracy.

  9. di falco, bob

    tonight april 5, on t.v., USA attorney general Holden had to admit being wrong about only a civil court could give a fair trial to enemies, such as e.g. guantanamo prisoners,

    and admit and transfer same to the Military for their adjudication via the Code of Military Justice a comprehensive Code (US-Law) dealing with enemies during Military wars,

    not that the mickey mouse shootem ups of iraq and afgh, and now egypt libya syria yeman jordan and all the mid east plus rabble rousing of all muslims and their nation of choice are what can be properly called Military wars, but dont let obama in on the secret, better he live in his dream world

    AG-holden still has not even dealt by his civil courts with the muslim who shot up unarmed soldiers in the
    Ft Hood Army Post,

    where there were no military or other police to guard the unarmed soldiers,

    killing a dozen and maiming 3 dozen or so,

    and is still being paid well over $100,000 salary plus perks and retirement credits and free medical care and given status of an officer in the military, so much for the Holden form of civil justice by civil courts …

    true the Federal Courts of Manhattan (Southern New York City) are kangeroo courts who would have had Holden operate these courts ad lib, but that is begging the point, the issue, the values of a court…

    it is not that Holden, a public figure of world fame, is stupid it is that he is trying hard to be number one yes-man of his hero obama …

    i have put all this and more INFORMATION to chief justice roberts who does not adjudicate the matter …

    anyway the point is during war time the enemy or suspected enemy must be held by the Military who can use the Code of Military Justice to dispose of them,

    enough for now i doubt Oxford U Press will publish this but at least i put it out there to be handled by whoever is in charge of this late great nation of yesteryear.

    if the moderator would be so kind as to email yes or no he published this he she will restore my faith in the whatever

  10. JoeMama

    oh man Di Falco you are a nut. You are one of those crazy people who clogs up the courts with psychotic handwritten “petitions” for liberty under the magna carta or some such nonsense. you don’t make any sense please go away.

  11. […] should have done a better job. Now the Supreme Court said that what they are doing is legal, and one writer interjects that they got that ruling on a technicality, which had more to do with how the claim was […]

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