OPINION OF THE COURT
SNYDER V. PHELPS
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-751
ALBERT SNYDER, PETITIONER
v. FRED W.
PHELPS, SR., et al.
on writ of certiorari to the united states court of
appeals for the fourth circuit
[March 2, 2011]
Chief Justice Roberts delivered
the opinion of the Court.
A jury held members of the
Westboro Baptist Church liable for millions of dollars in damages
for picketing near a soldier’s funeral service. The picket signs
reflected the church’s view that the United States is overly
tolerant of sin and that God kills American soldiers as punishment.
The question presented is whether the First Amendment shields the
church members from tort liability for their speech in this
case.
I
A
Fred Phelps founded the Westboro
Baptist Church in Topeka, Kansas, in 1955. The church’s
congregation believes that God hates and punishes the United States
for its tolerance of homosexuality, particularly in America’s
military. The church frequently communicates its views by
picketing, often at military funerals. In the more than 20 years
that the members of Westboro Baptist have publicized their message,
they have picketed nearly 600 funerals. Brief for Rutherford
Institute as
Amicus Curiae 7, n. 14.
Marine Lance Corporal Matthew
Snyder was killed in Iraq in the line of duty. Lance Corporal
Snyder’s father selected the Catholic church in the Snyders’
hometown of Westminster, Maryland, as the site for his son’s
funeral. Local newspapers provided notice of the time and location
of the service.
Phelps became aware of Matthew Snyder’s
funeral and decided to travel to Maryland with six other Westboro
Baptist parishioners (two of his daughters and four of his
grandchildren) to picket. On the day of the memorial service, the
Westboro congregation members picketed on public land adjacent to
public streets near the Maryland State House, the United States
Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers
carried signs that were largely the same at all three locations.
They stated, for instance: “God Hates the USA/Thank God for 9/11,”
“America is Doomed,” “Don’t Pray for the USA,” “Thank God for
IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape
Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates
You.”
The church had notified the authorities in
advance of its intent to picket at the time of the funeral, and the
picketers complied with police instructions in staging their
demonstration. The picketing took place within a 10- by 25-foot
plot of public land adjacent to a public street, behind a temporary
fence. App. to Brief for Appellants in No. 08–1026 (CA4),
pp. 2282–2285 (hereinafter App.). That plot was approximately
1,000 feet from the church where the funeral was held. Several
buildings separated the picket site from the church.
Id.,
at 3758. The Westboro picketers displayed their signs for about 30
minutes before the funeral began and sang hymns and recited Bible
verses. None of the picketers entered church property or went to
the cemetery. They did not yell or use profanity, and there was no
violence associated with the picketing.
Id., at 2168,
2371, 2286, 2293.
The funeral procession passed within 200 to
300 feet of the picket site. Although Snyder testified that he
could see the tops of the picket signs as he drove to the funeral,
he did not see what was written on the signs until later that
night, while watching a news broadcast covering the event.
Id., at 2084–2086.[
Footnote 1]
B
Snyder filed suit against Phelps,
Phelps’s daughters, and the Westboro Baptist Church (collectively
Westboro or the church) in the United States District Court for the
District of Maryland under that court’s diversity jurisdiction.
Snyder alleged five state tort law claims: defamation, publicity
given to private life, intentional infliction of emotional
distress, intrusion upon seclusion, and civil conspiracy. Westboro
moved for summary judgment contending, in part, that the church’s
speech was insulated from liability by the First Amendment. See 533
F. Supp. 2d 567, 570 (Md. 2008).
The District Court awarded
Westboro summary judgment on Snyder’s claims for defamation and
publicity given to private life, concluding that Snyder could not
prove the necessary elements of those torts.
Id., at
572–573. A trial was held on the remaining claims. At trial, Snyder
described the severity of his emotional injuries. He testified that
he is unable to separate the thought of his dead son from his
thoughts of Westboro’s picketing, and that he often becomes
tearful, angry, and physically ill when he thinks about it.
Id., at 588–589. Expert witnesses testified that Snyder’s
emotional anguish had resulted in severe depression and had
exacerbated pre-existing health conditions.
A jury found for Snyder on the intentional
infliction of emotional distress, intrusion upon seclusion, and
civil conspiracy claims, and held Westboro liable for $2.9 million
in compensatory damages and $8 million in punitive damages.
Westboro filed several post-trial motions, including a motion
contending that the jury verdict was grossly excessive and a motion
seeking judgment as a matter of law on all claims on First
Amendment grounds. The District Court remitted the punitive damages
award to $2.1 million, but left the jury verdict otherwise intact.
Id., at 597.
In the Court of Appeals, Westboro’s primary
argument was that the church was entitled to judgment as a matter
of law because the First Amendment fully protected Westboro’s
speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4
2009). The court reviewed the picket signs and concluded that
Westboro’s statements were entitled to First Amendment protection
because those statements were on matters of public concern, were
not provably false, and were expressed solely through hyperbolic
rhetoric.
Id., at 222–224.[
Footnote 2]
We granted certiorari. 559 U. S. ___
(2010).
II
To succeed on a claim for
intentional infliction of emotional distress in Maryland, a
plaintiff must demonstrate that the defendant intentionally or
recklessly engaged in extreme and outrageous conduct that caused
the plaintiff to suffer severe emotional distress. See
Harris v.
Jones, 281 Md. 560, 565–566, 380
A. 2d 611, 614 (1977). The Free Speech Clause of the First
Amendment—“Congress shall make no law … abridging the freedom of
speech”—can serve as a defense in state tort suits, including suits
for intentional infliction of emotional distress. See,
e.g., Hustler Magazine, Inc. v.
Falwell,
485 U. S. 46,
50–51 (1988).[
Footnote 3]
Whether the First Amendment
prohibits holding Westboro liable for its speech in this case turns
largely on whether that speech is of public or private concern, as
determined by all the circumstances of the case. “[S]peech on
‘matters of public concern’ … is ‘at the heart of the First
Amendment’s protection.’ ”
Dun & Bradstreet, Inc.
v.
Greenmoss Builders, Inc.,
472 U. S. 749, 758–759
(1985) (opinion of Powell, J.) (quoting
First Nat. Bank of
Boston v.
Bellotti,
435 U. S. 765, 776
(1978)). The First Amendment reflects “a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.”
New York Times Co. v.
Sullivan,
376 U. S. 254, 270
(1964). That is because “speech concerning public affairs is more
than self-expression; it is the essence of self-government.”
Garrison v.
Louisiana,
379 U. S. 64, 74–75
(1964). Accordingly, “speech on public issues occupies the highest
rung of the hierarchy of First Amendment values, and is entitled to
special protection.”
Connick v.
Myers,
461 U. S. 138, 145
(1983) (internal quotation marks omitted).
“ ‘[N]ot all speech is of equal First
Amendment importance,’ ” however, and where matters of purely
private significance are at issue, First Amendment protections are
often less rigorous.
Hustler,
supra, at 56
(quoting
Dun & Bradstreet,
supra, at 758);
see
Connick,
supra, at 145–147. That is because
restricting speech on purely private matters does not implicate the
same constitutional concerns as limiting speech on matters of
public interest: “[T]here is no threat to the free and robust
debate of public issues; there is no potential interference with a
meaningful dialogue of ideas”; and the “threat of liability” does
not pose the risk of “a reaction of self-censorship” on matters of
public import.
Dun & Bradstreet,
supra, at
760 (internal quotation marks omitted).
We noted a short time ago, in considering
whether public employee speech addressed a matter of public
concern, that “the boundaries of the public concern test are not
well defined.”
San Diego v.
Roe,
543 U. S. 77, 83 (2004)
(
per curiam). Although that remains true today, we have
articulated some guiding principles, principles that accord broad
protection to speech to ensure that courts themselves do not become
inadvertent censors.
Speech deals with matters of public concern
when it can “be fairly considered as relating to any matter of
politi- cal, social, or other concern to the community,”
Connick,
supra, at 146, or when it “is a subject
of legitimate news interest; that is, a subject of general interest
and of value and concern to the public,”
San Diego,
supra, at 83–84. See
Cox Broadcasting Corp. v.
Cohn,
420
U. S. 469, 492–494 (1975);
Time, Inc. v.
Hill,
385
U. S. 374, 387– 388 (1967). The arguably “inappropriate or
controversial character of a statement is irrelevant to the
question whether it deals with a matter of public concern.”
Rankin v.
McPherson,
483 U. S. 378, 387
(1987).
Our opinion in
Dun & Bradstreet,
on the other hand, provides an example of speech of only private
concern. In that case we held, as a general matter, that
information about a particular individual’s credit report “concerns
no public issue.” 472 U. S., at 762. The content of the report, we
explained, “was speech solely in the individual interest of the
speaker and its specific business audience.”
Ibid. That
was confirmed by the fact that the particular report was sent to
only five subscribers to the reporting service, who were bound not
to disseminate it further.
Ibid. To cite another example,
we concluded in
San Diego v.
Roe that, in the
context of a government employer regulating the speech of its
employees, videos of an employee engaging in sexually explicit acts
did not address a public concern; the videos “did nothing to inform
the public about any aspect of the [employing agency’s] functioning
or operation.” 543 U. S., at 84.
Deciding whether speech is of public or
private concern requires us to examine the “ ‘content, form,
and context’ ” of that speech, “ ‘as revealed by the
whole record.’ ”
Dun & Bradstreet,
supra, at 761 (quoting
Connick,
supra,
at 147–148). As in other First Amendment cases, the court is
obligated “to ‘make an independent examination of the whole record’
in order to make sure that ‘the judgment does not constitute a
forbidden intrusion on the field of free expression.’ ”
Bose Corp. v.
Consumers Union of United States,
Inc.,
466 U. S.
485, 499 (1984) (quoting
New York Times,
supra, at 284–286). In considering content, form, and
context, no factor is dispositive, and it is necessary to evaluate
all the circumstances of the speech, including what was said, where
it was said, and how it was said.
The “content” of Westboro’s signs plainly
relates to broad issues of interest to society at large, rather
than matters of “purely private concern.”
Dun &
Bradstreet,
supra, at 759. The placards read “God
Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray
for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,”
“God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not
Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in
Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates
You.” App. 3781–3787. While these messages may fall short of
refined social or political commentary, the issues they
highlight—the political and moral conduct of the United States and
its citizens, the fate of our Nation, homosexuality in the
military, and scandals involving the Catholic clergy—are matters of
public import. The signs certainly convey Westboro’s position on
those issues, in a manner designed, unlike the private speech in
Dun & Bradstreet, to reach as broad a public audience
as possible. And even if a few of the signs—such as “You’re Going
to Hell” and “God Hates You”—were viewed as containing messages
related to Matthew Snyder or the Snyders specifically, that would
not change the fact that the overall thrust and dominant theme of
Westboro’s demonstration spoke to broader public issues.
Apart from the content of Westboro’s signs,
Snyder contends that the “context” of the speech—its connection
with his son’s funeral—makes the speech a matter of private rather
than public concern. The fact that Westboro spoke in connection
with a funeral, however, cannot by itself transform the nature of
Westboro’s speech. Westboro’s signs, displayed on public land next
to a public street, reflect the fact that the church finds much to
condemn in modern society. Its speech is “fairly characterized as
constituting speech on a matter of public concern,”
Connick, 461 U. S., at 146, and the funeral setting does
not alter that conclusion.
Snyder argues that the church members in fact
mounted a personal attack on Snyder and his family, and then
attempted to “immunize their conduct by claiming that they were
actually protesting the United States’ tolerance of homosexuality
or the supposed evils of the Catholic Church.” Reply Brief for
Petitioner 10. We are not concerned in this case that Westboro’s
speech on public matters was in any way contrived to insulate
speech on a private matter from liability. Westboro had been
actively engaged in speaking on the subjects addressed in its
picketing long before it became aware of Matthew Snyder, and there
can be no serious claim that Westboro’s picketing did not represent
its “honestly believed” views on public issues.
Garrison,
379 U. S., at 73. There was no pre-existing relationship or
conflict between Westboro and Snyder that might suggest Westboro’s
speech on public matters was intended to mask an attack on Snyder
over a private matter. Contrast
Connick,
supra,
at 153 (finding public employee speech a matter of private concern
when it was “no coincidence that [the speech] followed upon the
heels of [a] transfer notice” affecting the employee).
Snyder goes on to argue that Westboro’s speech
should be afforded less than full First Amendment protection “not
only because of the words” but also because the church members
exploited the funeral “as a platform to bring their message to a
broader audience.” Brief for Petitioner 44, 40. There is no doubt
that Westboro chose to stage its picketing at the Naval Academy,
the Maryland State House, and Matthew Snyder’s funeral to increase
publicity for its views and because of the relation between those
sites and its views—in the case of the military funeral, because
Westboro believes that God is killing American soldiers as
punishment for the Nation’s sinful policies.
Westboro’s choice to convey its views in
conjunction with Matthew Snyder’s funeral made the expression of
those views particularly hurtful to many, especially to Matthew’s
father. The record makes clear that the applicable legal
term—“emotional distress”—fails to capture fully the anguish
Westboro’s choice added to Mr. Snyder’s already incalculable grief.
But Westboro conducted its picketing peacefully on matters of
public concern at a public place adjacent to a public street. Such
space occupies a “special position in terms of First Amendment
protection.”
United States v.
Grace,
461 U. S. 171, 180
(1983). “[W]e have repeatedly referred to public streets as the
archetype of a traditional public forum,” noting that
“ ‘[t]ime out of mind’ public streets and sidewalks have been
used for public assembly and debate.”
Frisby v.
Schultz,
487 U. S. 474, 480
(1988).[
Footnote 4]
That said, “[e]ven protected speech is not
equally permissible in all places and at all times.”
Id.,
at 479 (quoting
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc.,
473 U. S. 788, 799
(1985)). Westboro’s choice of where and when to conduct its
picketing is not beyond the Government’s regulatory reach—it is
“subject to reasonable time, place, or manner restrictions” that
are consistent with the standards announced in this Court’s
precedents.
Clark v.
Community for Creative
Non-Violence,
468 U. S. 288, 293
(1984). Maryland now has a law imposing restrictions on funeral
picketing, Md. Crim. Law Code Ann. §10–205 (Lexis Supp. 2010), as
do 43 other States and the Federal Government. See Brief for
American Legion as
Amicus Curiae 18–19, n. 2 (listing
statutes). To the extent these laws are content neutral, they raise
very different questions from the tort verdict at issue in this
case. Maryland’s law, however, was not in effect at the time of the
events at issue here, so we have no occasion to consider how it
might apply to facts such as those before us, or whether it or
other similar regulations are constitutional.[
Footnote 5]
We have identified a few limited situations
where the location of targeted picketing can be regulated under
provisions that the Court has determined to be content neutral. In
Frisby, for example, we upheld a ban on such picketing
“before or about” a particular residence, 487 U. S., at 477. In
Madsen v.
Women’s Health Center, Inc., we
approved an injunction requiring a buffer zone between protesters
and an abortion clinic entrance.
512 U. S. 753, 768
(1994). The facts here are obviously quite different, both with
respect to the activity being regulated and the means of
restricting those activities.
Simply put, the church members had the right
to be where they were. Westboro alerted local authorities to its
funeral protest and fully complied with police guidance on where
the picketing could be staged. The picketing was conducted under
police supervision some 1,000 feet from the church, out of the
sight of those at the church. The protest was not unruly; there was
no shouting, profanity, or violence.
The record confirms that any distress
occasioned by Westboro’s picketing turned on the content and
viewpoint of the message conveyed, rather than any interference
with the funeral itself. A group of parishioners standing at the
very spot where Westboro stood, holding signs that said “God Bless
America” and “God Loves You,” would not have been subjected to
liability. It was what Westboro said that exposed it to tort
damages.
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.
“If there is a bedrock principle underlying the First Amendment, it
is that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable.”
Texas v.
Johnson,
491 U. S. 397, 414
(1989). Indeed, “the point of all speech protection … is to shield
just those choices of content that in someone’s eyes are misguided,
or even hurtful.”
Hurley v.
Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 574
(1995).
The jury here was instructed that it could
hold Westboro liable for intentional infliction of emotional
distress based on a finding that Westboro’s picketing was
“outrageous.” “Outrageousness,” however, is a highly malleable
standard with “an inherent subjectiveness about it which would
allow a jury to impose liability on the basis of the jurors’ tastes
or views, or perhaps on the basis of their dislike of a particular
expression.”
Hustler, 485 U. S., at 55 (internal quotation
marks omitted). In a case such as this, a jury is “unlikely to be
neutral with respect to the content of [the] speech,” posing “a
real danger of becoming an instrument for the suppression of …
‘vehement, caustic, and sometimes unpleasan[t]’ ” expression.
Bose Corp., 466 U. S., at 510 (quoting
New York
Times, 376 U. S., at 270). Such a risk is unacceptable; “in
public debate [we] must tolerate insulting, and even outrageous,
speech in order to provide adequate ‘breathing space’ to the
freedoms protected by the First Amendment.”
Boos v.
Barry,
485
U. S. 312, 322 (1988) (some internal quotation marks omitted).
What Westboro said, in the whole context of how and where it chose
to say it, is entitled to “special protection” under the First
Amendment, and that protection cannot be overcome by a jury finding
that the picketing was outrageous.
For all these reasons, the jury verdict
imposing tort liability on Westboro for intentional infliction of
emotional distress must be set aside.
III
The jury also found Westboro
liable for the state law torts of intrusion upon seclusion and
civil conspiracy. The Court of Appeals did not examine these torts
independently of the intentional infliction of emotional distress
tort. Instead, the Court of Appeals reversed the District Court
wholesale, holding that the judgment wrongly “attache[d] tort
liability to constitutionally protected speech.” 580 F. 3d, at
226.
Snyder argues that even assuming
Westboro’s speech is entitled to First Amendment protection
generally, the church is not immunized from liability for intrusion
upon seclusion because Snyder was a member of a captive audience at
his son’s funeral. Brief for Petitioner 45–46. We do not agree. In
most circumstances, “the Constitution does not permit the
government to decide which types of otherwise protected speech are
sufficiently offensive to require protection for the unwilling
listener or viewer. Rather, … the burden normally falls upon the
viewer to avoid further bombardment of [his] sensibilities simply
by averting [his] eyes.”
Erznoznik v.
Jacksonville,
422 U. S. 205, 210–211
(1975) (internal quotation marks omitted). As a result, “[t]he
ability of government, consonant with the Constitution, to shut off
discourse solely to protect others from hearing it is … dependent
upon a showing that substantial privacy interests are being invaded
in an essentially intolerable manner.”
Cohen v.
California,
403 U. S. 15, 21
(1971).
As a general matter, we have applied the
captive audience doctrine only sparingly to protect unwilling
listeners from protected speech. For example, we have upheld a
statute allowing a homeowner to restrict the delivery of offensive
mail to his home, see
Rowan v.
Post Office Dept.,
397 U. S. 728,
736–738 (1970), and an ordinance prohibiting picketing “before or
about” any individual’s residence,
Frisby, 487 U. S., at
484–485.
Here, Westboro stayed well away from the
memorial service. Snyder could see no more than the tops of the
signs when driving to the funeral. And there is no indication that
the picketing in any way interfered with the funeral service
itself. We decline to expand the captive audience doctrine to the
circumstances presented here.
Because we find that the First Amendment bars
Snyder from recovery for intentional infliction of emotional
distress or intrusion upon seclusion—the alleged unlawful activity
Westboro conspired to accomplish—we must likewise hold that Snyder
cannot recover for civil conspiracy based on those torts.
IV
Our holding today is narrow. We
are required in First Amendment cases to carefully review the
record, and the reach of our opinion here is limited by the
particular facts before us. As we have noted, “the sensitivity and
significance of the interests presented in clashes between First
Amendment and [state law] rights counsel relying on limited
principles that sweep no more broadly than the appropriate context
of the instant case.”
Florida Star v.
B. J. F.,
491 U. S. 524, 533
(1989).
Westboro believes that America is
morally flawed; many Americans might feel the same about Westboro.
Westboro’s funeral picketing is certainly hurtful and its
con-tribution 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 judgment of the United States Court of
Appeals for the Fourth Circuit is affirmed.
It is so ordered.
Footnote 1
A few weeks after the funeral, one of the
picketers posted a message on Westboro’s Web site discussing the
picketing and containing religiously oriented denunciations of the
Snyders, interspersed among lengthy Bible quotations. Snyder
discovered the posting, referred to by the parties as the “epic,”
during an Internet search for his son’s name. The epic is not
properly before us and does not factor in our analysis. Although
the epic was submitted to the jury and discussed in the courts
below, Snyder never mentioned it in his petition for certiorari.
See Pet. for Cert.
i (“Snyder’s claim arose out of Phelps’
intentional acts
at Snyder’s son’s funeral” (emphasis
added)); this Court’s Rule 14.1(g) (petition must contain statement
“setting out the facts material to consideration of the question
presented”). Nor did Snyder respond to the statement in the
opposition to certiorari that “[t]hough the epic was asserted as a
basis for the claims at trial, the petition … appears to be
addressing only claims based on the picketing.” Brief in Opposition
9. Snyder devoted only one paragraph in the argument section of his
opening merits brief to the epic. Given the foregoing and the fact
that an Internet posting may raise distinct issues in this context,
we decline to consider the epic in deciding this case. See
Ontario v.
Quon, 560 U. S. ___,
___ – ___ (2010) (slip op., at 10–12).
Footnote 2
One judge concurred in the judgment on the
ground that Snyder had failed to introduce sufficient evidence at
trial to support a jury verdict on any of his tort claims. 580
F. 3d, at 227 (opinion of Shedd, J.). The Court of Appeals
majority determined that the picketers had “voluntarily waived” any
such contention on appeal.
Id., at 216. Like the court
below, we proceed on the unexamined premise that respondents’
speech was tortious.
Footnote 3
The dissent attempts to draw parallels
between this case and hy-pothetical cases involving defamation or
fighting words.
Post, at 10–11 (opinion of
Alito, J.). But, as the court below noted, there is “no
suggestion that the speech at issue falls within one of the
categorical exclusions from First Amendment protection, such as
those for obscenity or ‘fighting words.’ ” 580 F. 3d, at
218, n. 12; see
United States v.
Stevens,
559 U. S. ___ , ___ (2010) (slip op., at 5).
Footnote 4
The dissent is wrong to suggest that the
Court considers a public street “a free-fire zone in which
otherwise actionable verbal attacks are shielded from liability.”
Post, at 10–11. The fact that Westboro conducted its
picketing adjacent to a public street does not insulate the speech
from liability, but instead heightens concerns that what is at
issue is an effort to communicate to the public the church’s views
on matters of public concern. That is why our precedents so clearly
recognize the special significance of this traditional public
forum.
Footnote 5
The Maryland law prohibits picketing within
100 feet of a funeral service or funeral procession; Westboro’s
picketing would have complied with that restriction.
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