Legal Commentary

The brief is available here at  here and, and it should be available on the ABA site at some point today.  The brief emphasizes that the protesters involved in the case were complying with all applicable laws and with official directives to stay several hundred feet away from the funeral of fallen Marine Matthew Snyder.   In fact, Mr. Snyder, the father of the deceased, did not see the content of the Phelps' signs until he viewed news coverage of the event and later went to the Phelps' website.  Thus, any disruption of Snyder's mourning, which formed the basis of his IIED and invasion of privacy claims, was based solely on the emotional impact (i.e., the offensiveness) of the Phelps' constitutionally protected speech.

In the brief, we argue that the offensive speech at issue in the case falls squarely within the bounds of First Amendment protected speech.  First, the Supreme Court has long protected offensive speech because it contributes to discourse on issues of public interest and because efforts to censor it often result from antipathy towards the speaker's message.  Second, the Court has never found a captive audience in a public forum based purely on the content of speech.  Abhorrence for the expression in the Snyder case does not justify creating a new dignity-based privacy interest that would allow censorship of unwanted or offensive speech.  Third, the First Amendment does not allow punishment of speech solely because of its emotional impact on the listener.  For this reason, the Court typically requires external indicia or harm before finding speech unprotected.  The Court should not permit evasion of these objective requirements by allowing tort liability under theories of invasion of privacy  or intentional infliction of emotional distress in the Snyder case.  Permitting tort liability for offensive speech would chill public discourse by allowing massive damage awards based on subjective criteria.  Categorizing the peaceful funeral protest in Snyder as unprotected speech contradicts the Court's existing jurisprudence and undermines the very purpose of the First Amendment.