Legal News

To What Degree Does the Constitution Protect Hurtful Speech?

By Ashby Jones

Already, it’s a contender as one of the more interesting cases of the Supreme Court’s 2010-11 term: whether funeral protesters can be forced to pay damages for infliction of emotional distress stemming from hurtful and obnoxious speech hurled toward the grieving. On Monday, the court decided to take up the case, reviewing a Fourth Circuit decision finding the First Amendment’s free speech clause barred such recovery. Click here for Jess Bravin and Brent Kendall’s story in the WSJ; here for the NYT story; here for coverage from Scotusblog.

The backstory is rather gripping. It centers on the Westboro Baptist Church of Topeka, Kan. According to Bravin and Kendall’s writeup, the church follows a strange practice — it pickets military funerals to “garner attention for its message of hostility to homosexuality and the Roman Catholic Church, and its claim that battlefield casualties represent divine retribution for what it views as America’s sins.”

In March 2006, the defendant in the case and others selected the funeral of Lance Cpl. Matthew Snyder, who was killed in Iraq, at St. John’s Catholic Church in Westminster, Md., as a vehicle for their cause. The Westboro group brought such signs as “Thank God for Dead Soldiers” and “God Hates You,” along with more vulgar messages.

Cpl. Snyder’s father sued for intentional infliction of emotional distress, and ultimately was awarded $5 million in damages. In September, however, the Fourth Circuit threw out the judgment, ruling that the speech was “intended to spark debate about issues” that concerned the Westboro group.

According to the NYT’s Adam Liptak, the case could turn on a case from 1988 involving Hustler magazine and Rev. Jerry Falwell. In that case, the Supreme Court ruled that the First Amendment barred Falwell from suing Hustler for intentional infliction of emotional distress after the magazine published content suggesting that Falwell had incestuous sex in an outhouse.

Snyder, according to Liptak, argues that the Hustler decision “should not apply to suits brought by one private person against another.” In certain cases, including libel cases, the Supreme Court has limited the First Amendment protection afforded to purely private speech, writes Liptak.

Full post as published by Law Blog - WSJ.com on March 09, 2010 (boomark / email).