A federal district court ruling in October fueled a debate about whether restricting protestors from picketing at funerals violates the First Amendment.
In a victory for supporters of protest-free funerals, the father of a Marine killed in Iraq won a $10.9 million verdict in October 2007 in federal district court in Baltimore against a Kansas church whose members picketed his son’s funeral. The damages award was reduced on Feb. 4, 2008 to $5 million by U.S. District Court Judge Richard D. Bennett, according to a February 5 Associated Press (AP) story.
The Topeka, Kan.-based Westboro Baptist Church claims that the deaths of American soldiers in Iraq represent God’s punishment for America’s tolerance of homosexuality, according to a Nov. 1, 2007 AP story.
Members of the 75-member fundamentalist church have protested at approximately 300 military funerals in the past two years, according to Reuters. Before picketing American military funerals, church members routinely protested at the funerals of gay people and AIDS victims, CNN reported.
The federal district court decision raises First Amendment concerns, according to Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, in a Nov. 19, 2007 article in Lawyers USA.
“If people are standing in a public place, even if [other] people have to go past it to get to a funeral, there is no constitutional basis on which to restrict their expressive activity,” Kirtley said. “If a court enforces a judgment like that, it could violate the First Amendment rights of the church protesters.”
Church members contend that state laws restricting their right to protest at a funeral violate the First Amendment. The AP reported in November 2007 that the church’s attorneys stated in their closing arguments before the district court that burials are public events and that the First Amendment protects the church’s right to free speech at the funeral.
The military funeral that precipitated the lawsuit was held in March 2006. Members of the Westboro church protested the burial of Marine Lance Corporal Matthew Snyder bearing signs saying “Thank God for dead soldiers,” according to The Baltimore Sun on March 11, 2006. The daughter of the church’s founder, Shirley Phelps-Roper, told the Sun at the funeral, “We’re here because we need to help these families connect the dots. God is punishing this nation.”
McClatchy Newspapers reported on Nov. 1, 2007 that the fallen Marine’s father, Albert Snyder, filed a civil action for damages in U.S. District Court in Baltimore against the church three months after his son’s death in an effort to stop church members from protesting at funerals. Snyder brought state law claims for defamation, invasion of privacy, and intentional infliction of emotional distress, according to the complaint, which is available on the Web site Snyder created to document his campaign against the Westboro Church, www.matthewsnyder.org.
Thirty-four states, including Maryland, have either enacted or proposed laws to limit the rights of protestors at funerals, according to a Jan. 21, 2008 Legal Times story. In 2006, Congress passed the Respect for America’s Fallen Heroes Act, Pub. L. 109-228, 120 Stat. 387, which bars protests at federal cemeteries. (See “Church Group’s Protests Spawn Legislation Limiting Demonstrations” in the Winter 2006 issue of the Silha Bulletin.)
Snyder did not bring his claim against the Westboro Church under Maryland’s state funeral protest law, which makes engaging in specified types of conduct and speech at funeral processions a misdemeanor. The Maryland law was proposed in early 2006, but became effective Oct. 1, 2006, almost four months after Snyder filed his complaint with the federal district court in Maryland on June 5, 2006. The state law, Md. Ann. Code section 10-205, prohibits picketing activity targeted at a funeral within 100 feet of the burial ceremony. It also prohibits speech directed to a person attending a funeral that is likely to incite or produce an imminent breach of the peace.
Snyder also did not allege violation of the federal funeral protest law because his son was interned at a Maryland state veterans cemetery, according to an obituary published in the York (Pa.) Daily Record on March 8, 2006. The federal law is applicable only to national cemeteries.
The jury’s October 2007 award to Snyder was $2.9 million in compensatory damages and $8 million in punitive damages for invasion of privacy and infliction of emotional distress, according to the Nov. 1, 2007 AP story.
“I hope it’s enough to deter them from doing this to other families. It was not about the money. It was about getting them to stop,” Snyder told Reuters on Oct. 31, 2007.
Members of the Westboro Church appeared undaunted by the negative decision, even welcoming the notoriety the lawsuit brought. In a statement quoted by McClatchy Newspapers, the church said “Not only did you fail to stop our preaching, but our message has gone forth to the entire world. ... Thank God for the $10.9 million verdict!”
On Feb. 4, 2008, U.S. District Court Judge Richard D. Bennett affirmed the jury’s verdict in favor of Snyder. In his 52-page decision, Bennett wrote, “There was more than sufficient evidence to support the jury’s verdict that [the Westboro church’s] conduct before, during and after the funeral of Matthew Snyder was outrageous.”
Bennett also rejected the Westboro church’s argument that its members enjoy an absolute Constitutional right to protest at funerals. He wrote in his decision, “Quite simply, the Supreme Court has recognized that there is not an absolute First Amendment right for any and all speech directed by private individuals against other private individuals.”
Bennett reduced the $10.9 million award granted in October 2007 to $5 million by affirming the compensatory damage award of $2.9 million and reducing the punitive damages award to $2.1 million, citing “constitutional concerns of appropriateness” in his decision, according to a Feb. 5, 2008 AP story.
A Congressional Research Service (CRS) report entitled “Constitutional Limits on Punitive Damages Awards” published in updated form on July 17, 2007, states that the U.S. Supreme Court has struck down large punitive damages awards for violating the Fourteenth Amendment’s Due Process Clause. Bennett indicated in his decision that he had to weigh the nature of the harm suffered by Snyder against the financial resources of the Westboro church.
Church members have stated that they will appeal the verdict, according to McClatchy Newspapers on Nov. 1, 2007, and said they believe that an appellate court will reverse the federal district court’s ruling on First Amendment grounds. Church founder Reverend Fred Phelps told Reuters, “It will take the 4th Circuit Court of Appeals a few minutes to reverse this silly thing.”
Snyder’s attorney, Sean Summers, told McClatchy Newspapers that the First Amendment does not protect all speech. “The reality is that the First Amendment has survived 200 years without anyone protesting funerals, and I think it’s safe to say that if this group is shut down and cannot protest funerals, the First Amendment will survive another 200 years,” Snyder said.
At the appellate level, a recent 8th Circuit U.S. Court of Appeals decision arguably supports the Westboro church’s First Amendment challenges to state statutes restricting protest at funerals.
In Phelps-Roper v. Nixon, 509 F.3d 480 (8th Cir. 2007), the 8th Circuit Court of Appeals ruled on Dec. 7, 2007 that Westboro church member Shirley Phelps-Roper was entitled to a preliminary injunction enjoining enforcement of a Missouri state statute, Mo. Rev. Stat. section 578.501, making it a misdemeanor offense to picket at a funeral one hour before or after the ceremony. Judge Kermit Bye, writing for the three-judge panel, stated that the 8th Circuit would not determine the constitutionality of the Missouri statute at issue. However, he added that “Phelps-Roper presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message.”
– Amba Datta
Silha Research Assistant