On March 2, 2011, the U.S. Supreme Court decided Snyder v. Phelps, No. 09-751, holding that the First Amendment protects "even hurtful speech on public issues to ensure that we shield public debate," and therefore shields from tort liability the actions of persons who picketed military funerals to communicate their belief that God hates the United States for its tolerance of homosexuality, particularly in the military.
The Westboro Baptist Church – a small congregation in Topeka, Kansas, that consists largely of family members of founder Fred Phelps – has picketed nearly 600 funerals over the past 20 years to communicate its views on homosexuality, particularly in America's military. Phelps and six other parishioners picketed the Westminster, Maryland, funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. They picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and the site of the funeral, holding signs that stated "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "Thank God for Dead Soldiers," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and similar messages. The picketers complied with police instructions in staging their demonstration. They did not enter church property or go to the cemetery, did not yell or use profanity, and did not engage in any violence. The funeral procession passed within 200 to 300 feet of the picket site. Although Albert Snyder (father of the slain Marine) could see the tops of picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.
Albert Snyder sued the picketers for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. He presented evidence of emotional anguish, severe depression, and exacerbation of pre-existing health conditions, and testified that he is unable to separate the thought of his dead son from his thoughts of the picketing. A jury held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. The Fourth Circuit Court of Appeals reversed, holding that the First Amendment fully protected the picketing.
The Supreme Court affirmed. The Court held that the picketing amounted to speech on public issues, which "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Although the particular messages on the picket signs "may fall short of refined social or political commentary, the issues they highlight – the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy – are matters of public import." The Court rejected Snyder's argument that picketing "was intended to mask an attack on Snyder over a private matter."
The Court recognized that Westboro's choice of where and when to conduct its picketing could be subject to reasonable, content-neutral time, place, or manner restrictions, but noted that Maryland did not have a law imposing restrictions on funeral picketing at the time of this incident and that "[s]imply put, the church members had the right to be where they were." The First Amendment in this case did not permit a jury to hold Westboro liable for intentional infliction of emotional distress based upon "a highly malleable standard" of "outrageousness."
The Court also held that Snyder could not recover for intrusion upon seclusion or civil conspiracy. It rejected Snyder's argument that he was "a member of a captive audience at his son's funeral," noting that Westboro stayed well away from the memorial service and that there was no indication that the picketing in any way interfered with the funeral service itself.
The Court acknowledged that many Americans might feel that Westboro is morally flawed, and that its funeral picketing is "certainly hurtful and its contribution to public discourse may be negligible." It rejected those factors as justifications for limiting Westboro's speech, however. It concluded: "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."
Chief Justice Roberts delivered the opinion of the Court, in which all justices except Justice Alito joined. Justice Breyer joined the Court's opinion and filed a concurring opinion. Justice Alito filed a dissenting opinion.