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Reporters Committee applauds Supreme Court ruling that even repugnant speech must be protected

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  1. First Amendment
Noting that even the most repugnant speech must be afforded the same protection as any other statement, the Reporters Committee…

Noting that even the most repugnant speech must be afforded the same protection as any other statement, the Reporters Committee for Freedom of the Press was pleased by today’s U.S. Supreme Court decision upholding a church’s First Amendment right to protest near military funerals.

“These were by no means sympathetic defendants, but the Court upheld the important principle that speech on matters of public concern must be protected from tort liability if the First Amendment’s guarantees are to mean anything,” according to Gregg Leslie, legal defense director of the Reporters Committee. “While many people would want to see these protests restricted, a holding against the church members would have threatened a great deal of public debate on controversial topics if any listeners could show they were personally distressed to hear unpleasant speech.”

The case of Snyder v. Phelps began when the Westboro Baptist Church picketed on public land outside the Maryland funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq. The church has been picketing military funerals for decades utilizing signs alleging that God is punishing the United States and the military particularly, for its tolerance of homosexuality. Phelps and others stayed 1,000 feet from the entrance to the funeral home, as proscribed by local law enforcement.

Although Synder’s father, Matthew, saw only the tops of the signs as the funeral procession passed the picketers, after seeing reports on the evening news he filed suit on several grounds, including intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy. A trial court awarded Snyder millions in compensatory and punitive damages, a total amount that was reduced though upheld by a federal judge. The U.S. Court of Appeals in Richmond, Va. (4th Cir.), however, agreed that Westboro’s statements were protected speech and overturned the verdict.

In an amicus brief to the U.S. Supreme Court, the Reporters Committee and 21 news organizations argued that “far more is at stake in this case than the ability of the Westboro Baptist Church to protest near military funerals. This case concerns an issue critical to a wide range of speakers, including members of the news media: whether a plaintiff may recover for intrusion and intentional infliction of emotional distress where the harm is based upon the publication of controversial speech about matters of public concern.”

The media amicus brief was written by Robert Corn-Revere of Davis Wright Tremaine LLP in Washington, D.C.

“Most reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful,” the media amici noted. “Without a doubt, the church’s message of intolerance is deeply offensive to many, and especially so to gay Americans, Catholics, veterans, and the families of those who sacrificed their lives defending the United States. But to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment’s most basic precepts.”

The media groups added: “This case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant. However, the particular facts of this case should not be used to fashion a First Amendment exemption for offensive speech.”

The High Court agreed. Writing for the 8-1 majority, Chief Justice John Roberts stated, “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

The Court continued, “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

“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.”

The lone dissent from Justice Samuel Alito maintained that, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

Go to the Reporters Committee website for legal analysis and background.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.