Lance Corporal Matthew Snyder was laid to rest in March of 2006. Instead of the quiet, respectful burial his family and friends had planned, Fred Phelps and members of the Westboro Baptist Church arrived to protest the funeral. Carrying signs with messages like “Thank God for Dead soldiers” and “God Hates the USA”, the Phelps entourage made their message of hate known at Matthew Snyder’s funeral. They later put up internet messages to the effect that Matthew Snyder’s family had “raised him for the Devil.”
Albert Snyder, father of the fallen Marine, sued Phelps and his church for intentional infliction of emotional distress among other claims. A jury awarded Snyder $11 million in damages. The verdict was later reduced to $5 million by the judge, then the case was overturned entirely by the federal court of appeals on First Amendment freedom of speech grounds.
Framed as a conflict between free speech and the right of privacy, the right to grieve in private, the case now finds itself before the Supreme Court. The unpopular message of Phelps and his group is that the killing of America’s service personnel is God’s punishment for America’s immorality, particularly its tolerance of homosexuality and abortion. Snyder argues that his private right to grieve the loss of his son was violated by the group’s actions.
Combined with an “informational privacy” case also being heard today, American’s right to privacy could undergo significant definition or re-definition. The second case involves claimed privacy violations in government background checks of civilian contractors at the Jet Propulsion Lab in association with its NASA work. The Ninth Circuit Court of Appeals issued an injunction against use of a questionnaire, and the government has brought the matter to the Supreme Court. Elena Kagan was U. S. Solicitor General when the case was proferred to the Supreme Court and will not participate in the decision.
Numerous possibilities exist in the context of both decisions. In the military funeral case, the Court could take the juxtaposition of free speech and privacy head on, or it could find that free speech simply does not extend to the conduct of Fred Phelps and his followers. Forty eight states and forty two senators have asked the Court to rule in the Snyder’s favor. A number of press and speech organizations have quietly joined Phelps’s side on free speech grounds.
There is no current exception to free speech for the intentional infliction of emotional distress. To find such an exception would open a Pandora’s box of litigation. Using speech to intentionally inflict emotional distress is a routine personal and political practice. The court of appeals recognized the problem in overturning the jury award against Phelps. On the other hand, finding that free speech is trumped by the un-enumerated Constitutional right to privacy would likely take privacy to a level some on the Court would prefer to avoid.
Expect an interesting, perhaps tortured, and possibly important decision from the Snyder case. And, don’t forget the Jet Propulsion Lab case. Unless the Court finds narrower grounds for deciding both, the privacy rights of Americans may well receive a makeover…one way or the other… during this term of the Supreme Court.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.