Judicial Notebook

Since 2005, the Rev. Fred Phelps and other members of the Westboro Baptist Church have protested at the funerals of slain Iraqi and Afghan war veterans in the hope of spreading their belief that those wars were the result of America’s willingness to embrace homosexuality. In 2006, Phelps staged such a protest near the funeral of Albert Snyder’s son, Lance Cpl. Matthew Snyder.

After notifying Albert Snyder of their intention to protest, seven members of the church demonstrated at Matthew Snyder’s funeral with signs bearing messages such as "Semper Fi Fags" and "Thank God for Dead Soldiers." They were not noisy, did not block access to the funeral and obeyed official directives to remain at least several hundred feet from the ceremony. Snyder was aware of the protestors’ presence, but he did not see the content of their signs until after the funeral when he did a Google search and found a news broadcast. Phelps also posted an Internet "epic" on the church’s website, claiming that the Snyders "raised [their son] for the devil, . . . taught [him] to defy his Creator, to divorce and to commit adultery . . . [and] taught him to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity." As a result, Snyder suffered severe emotional distress.

Snyder sued for intentional infliction of emotional distress and invasion of privacy. Although the district court cautioned the jury against suppressing speech merely because it was offensive, the court also instructed the jury that it was to determine if the protestors’ "actions would be highly offensive to a reasonable person, whether they were extreme and outrageous, and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection." The jury returned a guilty verdict and damages of $10.9 million against the protestors. The district court reduced the award to $5 million, but denied the defendents’ other post-trial motions, ruling that the protestors created an "atmosphere of confrontation," which invoked the rights of mourners to "avoid being verbally assaulted by outrageous speech and comment during a time of bereavement."

The 4th Circuit Court of Appeals, however, found that the First Amendment protected the protestors’ speech (580 F.3d 206 (2009)). Although the court recognized that the expression profoundly distressed Snyder, the appellate court concluded that the speech could not reasonably be read to imply a provably false factual assertion about the Snyders and that it expressed "hyperbolic rhetoric" intended to spark public debate. The court reasoned that the First Amendment provides "breathing space for [such] contentious speech," even when it involves "exaggeration, vilification of men ... and the probability of excesses and abuses." Snyder appealed and the U.S. Supreme Court granted certiorari.

Social science can inform the tensions raised by the case through insights into the effects of offensive speech on those who experience it (see Nielsen, 2004), individual differences in perceptions of offensive speech, the contours of the fine line between speech on the one hand and intimidation or harassment on the other, and the emotions that offensive speech can elicit in its targets or in observers (such as judges or jurors). In particular, demeaning and disrespectful treatment — such as that associated with offensive speech — tends to be associated with anger. Such anger is likely to lead to responsive action, including the desire to curtail the offensive speech and to punish the speaker. Indeed, the court has long recognized that expression can "stir people to anger ... strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea" (Terminiello v. City of Chicago, 1949).

Nevertheless, the court’s free speech jurisprudence does not allow government-sanctioned punishment of speech solely because the message may be offensive. Rather, it allows regulation of speech only if there are objective indications of harm, such as threats, fraud or violence. The court protects offensive speech because speech on matters of public concern is valuable even when it is delivered in an offensive manner and because punishing offensive speech can lead to censorship of unpopular views. In doing so, the court has implicitly recognized the inherent tensions created by our psychological responses to offensive speech and the importance we place on the free exchange of ideas.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).