Snyder v. Phelps , 131 S. Ct. 1207 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SNYDER v. PHELPS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 09–751. Argued October 6, 2010—Decided March 2, 2011
For the past 20 years, the congregation of the Westboro Baptist Church
has picketed military funerals to communicate its belief that God
hates the United States for its tolerance of homosexuality, particu
larly in America’s military. The church’s picketing has also con
demned the Catholic Church for scandals involving its clergy. Fred
Phelps, who founded the church, and six Westboro Baptist parishion
ers (all relatives of Phelps) traveled to Maryland to picket the funeral
of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in
the line of duty. The picketing took place on public land approxi
mately 1,000 feet from the church where the funeral was held, in ac
cordance with guidance from local law enforcement officers. The
picketers peacefully displayed their signs—stating, e.g., “Thank God
for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,”
“Priests Rape Boys,” and “You’re Going to Hell”—for about 30 min
utes before the funeral began. Matthew Snyder’s father (Snyder), pe
titioner here, saw the tops of the picketers’ signs when driving to the
funeral, but did not learn what was written on the signs until watch
ing a news broadcast later that night.
Snyder filed a diversity action against Phelps, his daughters—who
participated in the picketing—and the church (collectively Westboro)
alleging, as relevant here, state tort claims of intentional infliction of
emotional distress, intrusion upon seclusion, and civil conspiracy. A
jury held Westboro liable for millions of dollars in compensatory and
punitive damages. Westboro challenged the verdict as grossly exces
sive and sought judgment as a matter of law on the ground that the
First Amendment fully protected its speech. The District Court re
duced the punitive damages award, but left the verdict otherwise in
tact. The Fourth Circuit reversed, concluding that Westboro’s state
2 SNYDER v. PHELPS
Syllabus
ments 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.
Held: The First Amendment shields Westboro from tort liability for its
picketing in this case. Pp. 5–15.
(a) The Free Speech Clause of the First Amendment can serve as a
defense in state tort suits, including suits for intentional infliction of
emotional distress. Hustler Magazine, Inc. v. Falwell, 485 U. S. 46,
50-51. Whether the First Amendment prohibits holding Westboro li
able 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 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. Although the
boundaries of what constitutes speech on matters of public concern
are not well defined, this Court has said that speech is of public con
cern when it can “be fairly considered as relating to any matter of po
litical, social, or other concern to the community,” id., at 146, or when
it “is a subject of general interest and of value and concern to the
public,” San Diego v. Roe, 543 U. S. 77, 83–84. A statement’s argua
bly “inappropriate or controversial character . . . is irrelevant to the
question whether it deals with a matter of public concern.” Rankin v.
McPherson, 483 U. S. 378, 387. Pp. 5–7.
To determine whether speech is of public or private concern, this
Court must independently examine the “ ‘content, form, and con
text,’ ” of the speech “ ‘as revealed by the whole record.’ ” Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 761. In
considering content, form, and context, no factor is dispositive, and it
is necessary to evaluate all aspects of the speech. Pp. 7–8.
The “content” of Westboro’s signs plainly relates to public, rather
than private, matters. The placards highlighted issues of public im
port—the political and moral conduct of the United States and its
citizens, the fate of the Nation, homosexuality in the military, and
scandals involving the Catholic clergy—and Westboro conveyed its
views on those issues in a manner designed to reach as broad a public
audience as possible. Even if a few of the signs were viewed as con
taining messages related to a particular individual, that would not
change the fact that the dominant theme of Westboro’s demonstra
tion spoke to broader public issues. P. 8.
The “context” of the speech—its connection with Matthew Snyder’s
funeral—cannot by itself transform the nature of Westboro’s speech.
The signs reflected Westboro’s condemnation of much in modern soci
ety, and it cannot be argued that Westboro’s use of speech on public
issues was in any way contrived to insulate a personal attack on
Cite as: 562 U. S. ____ (2011) 3
Syllabus
Snyder from liability. Westboro had been actively engaged in speak
ing on the subjects addressed in its picketing long before it became
aware of Matthew Snyder, and there can be no serious claim that the
picketing did not represent Westboro’s honestly held beliefs on public
issues. Westboro may have chosen the picket location to increase
publicity for its views, and its speech may have been particularly
hurtful to Snyder. That does not mean that its speech should be af
forded less than full First Amendment protection under the circum
stances of this case. Pp. 8–10.
That said, “ ‘[e]ven protected speech is not equally permissible in all
places and at all times.’ ” Frisby v. Schultz, 487 U. S. 474, 479.
Westboro’s choice of where and when to conduct its picketing is not
beyond the Government’s regulatory reach—it is “subject to reason
able time, place, or manner restrictions.” Clark v. Community for
Creative Non-Violence, 468 U. S. 288, 293. The facts here are quite
different, however, both with respect to the activity being regulated
and the means of restricting those activities, from the few limited
situations where the Court has concluded that the location of tar
geted picketing can be properly regulated under provisions deemed
content neutral. Frisby, supra, at 477; Madsen v. Women’s Health
Center, Inc., 512 U. S. 753, 768, distinguished. Maryland now has a
law restricting funeral picketing but that law was not in effect at the
time of these events, so this Court has no occasion to consider
whether that law is a “reasonable time, place, or manner restric
tio[n]” under the standards announced by this Court. Clark, supra,
at 293. Pp. 10–12.
The “special protection” afforded to what Westboro said, in the
whole context of how and where it chose to say it, cannot be overcome
by a jury finding that the picketing was “outrageous” for purposes of
applying the state law tort of intentional infliction of emotional dis
tress. That would pose too great a danger that the jury would punish
Westboro for its views on matters of public concern. For all these
reasons, the jury verdict imposing tort liability on Westboro for inten
tional infliction of emotional distress must be set aside. Pp. 12–13.
(b) Snyder also may not recover for the tort of intrusion upon seclu
sion. He argues that he was a member of a captive audience at his
son’s funeral, but the captive audience doctrine—which has been ap
plied sparingly, see Rowan v. Post Office Dept., 397 U. S. 728, 736–
738; Frisby, supra, at 484–485—should not be expanded to the cir
cumstances here. Westboro stayed well away from the memorial ser
vice, Snyder could see no more than the tops of the picketers’ signs,
and there is no indication that the picketing interfered with the fu
neral service itself. Pp. 13–14.
(c) Because the First Amendment bars Snyder from recovery for in
4 SNYDER v. PHELPS
Syllabus
tentional infliction of emotional distress or intrusion upon seclu
sion—the allegedly unlawful activity Westboro conspired to accom
plish—Snyder also cannot recover for civil conspiracy based on those
torts. P. 14.
(d) Westboro addressed matters of public import on public prop
erty, in a peaceful manner, in full compliance with the guidance of lo
cal officials. It did not disrupt Mathew Snyder’s funeral, and its
choice to picket at that time and place did not alter the nature of its
speech. Because this Nation has chosen to protect even hurtful
speech on public issues to ensure that public debate is not stifled,
Westboro must be shielded from tort liability for its picketing in this
case. Pp. 14–15.
580 F. 3d 206, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined. BREYER, J., filed a concurring opinion. ALITO, J., filed a dissent
ing opinion.
Cite as: 562 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 Amer
ica’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.
2 SNYDER v. PHELPS
Opinion of the Court
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 car
ried 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 picket
ers 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 West
boro 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 prop
erty 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.
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
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 2084–2086.1
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 jurisdic
tion. Snyder alleged five state tort law claims: defama
tion, 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 insu
lated from liability by the First Amendment. See 533
F. Supp. 2d 567, 570 (Md. 2008).
——————
1 A few weeks after the funeral, one of the picketers posted a message
on Westboro’s Web site discussing the picketing and containing relig
iously 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).
4 SNYDER v. PHELPS
Opinion of the Court
The District Court awarded Westboro summary judg
ment 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 wit
nesses 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 mil
lion in compensatory damages and $8 million in punitive
damages. Westboro filed several post-trial motions, in
cluding 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 West
boro’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 222–224.2
——————
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
Cite as: 562 U. S. ____ (2011) 5
Opinion of the Court
We granted certiorari. 559 U. S. ___ (2010).
II
To succeed on a claim for intentional infliction of emo
tional 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).3
Whether the First Amendment prohibits holding West
boro 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 Amend
ment reflects “a profound national commitment to the
——————
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 “voluntar
ily waived” any such contention on appeal. Id., at 216. Like the court
below, we proceed on the unexamined premise that respondents’ speech
was tortious.
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 obscen
ity or ‘fighting words.’ ” 580 F. 3d, at 218, n. 12; see United States v.
Stevens, 559 U. S. ___ , ___ (2010) (slip op., at 5).
6 SNYDER v. PHELPS
Opinion of the Court
principle that debate on public issues should be uninhibi
ted, robust, and wide-open.” New York Times Co. v. Sulli
van, 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 impor
tance,’ ” 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 mat
ters 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 dia
logue 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 con
cern, 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
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
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 engag
ing in sexually explicit acts did not address a public con
cern; 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,
8 SNYDER v. PHELPS
Opinion of the Court
form, and context, no factor is dispositive, and it is neces
sary to evaluate all the circumstances of the speech, in
cluding 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, homosexual
ity 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 West
boro 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
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
street, reflect the fact that the church finds much to con
demn 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 con
cerned in this case that Westboro’s speech on public mat
ters 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 pick
eting 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,
10 SNYDER v. PHELPS
Opinion of the Court
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 Mat
thew’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).4
That said, “[e]ven protected speech is not equally per
missible in all places and at all times.” Id., at 479 (quot
ing 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 Govern
ment’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
——————
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 con
ducted 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.
Cite as: 562 U. S. ____ (2011) 11
Opinion of the Court
(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 ques
tions from the tort verdict at issue in this case. Mary
land’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.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
——————
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.
12 SNYDER v. PHELPS
Opinion of the Court
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 underly
ing 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 some
times 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
Cite as: 562 U. S. ____ (2011) 13
Opinion of the Court
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 independ
ently 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 audi
ence 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 audi
14 SNYDER v. PHELPS
Opinion of the Court
ence 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 prohibit
ing 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 indica
tion 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 dis
tress or intrusion upon seclusion—the alleged unlawful
activity Westboro conspired to accomplish—we must
likewise hold that Snyder cannot recover for civil conspir
acy 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 signifi
cance 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. West
boro’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
Cite as: 562 U. S. ____ (2011) 15
Opinion of the Court
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 con
duct 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 West
boro 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.
Cite as: 562 U. S. ____ (2011) 1
BREYER, J., concurring
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]
JUSTICE BREYER, concurring.
I agree with the Court and join its opinion. That opin
ion restricts its analysis here to the matter raised in the
petition for certiorari, namely, Westboro’s picketing activ
ity. The opinion does not examine in depth the effect of
television broadcasting. Nor does it say anything about
Internet postings. The Court holds that the First
Amendment protects the picketing that occurred here,
primarily because the picketing addressed matters of
“public concern.”
While I agree with the Court’s conclusion that the pick
eting addressed matters of public concern, I do not believe
that our First Amendment analysis can stop at that point.
A State can sometimes regulate picketing, even picketing
on matters of public concern. See Frisby v. Schultz, 487
U. S. 474 (1988). Moreover, suppose that A were physi
cally to assault B, knowing that the assault (being news
worthy) would provide A with an opportunity to transmit
to the public his views on a matter of public concern. The
constitutionally protected nature of the end would not
shield A’s use of unlawful, unprotected means. And in
some circumstances the use of certain words as means
would be similarly unprotected. See Chaplinsky v. New
Hampshire, 315 U. S. 568 (1942) (“fighting words”).
The dissent recognizes that the means used here consist
2 SNYDER v. PHELPS
BREYER, J., concurring
of speech. But it points out that the speech, like an as
sault, seriously harmed a private individual. Indeed, the
state tort of “intentional infliction of emotional distress”
forbids only conduct that produces distress “so severe that
no reasonable man could be expected to endure it,” and
which itself is “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Post, at 2–3 (opinion of ALITO, J.)
(quoting Harris v. Jones, 281 Md. 560, 567, 571, 380 A. 2d
611, 614, 616 (1977); internal quotation marks omitted).
The dissent requires us to ask whether our holding unrea
sonably limits liability for intentional infliction of emo
tional distress—to the point where A (in order to draw
attention to his views on a public matter) might launch a
verbal assault upon B, a private person, publicly revealing
the most intimate details of B’s private life, while knowing
that the revelation will cause B severe emotional harm.
Does our decision leave the State powerless to protect the
individual against invasions of, e.g., personal privacy, even
in the most horrendous of such circumstances?
As I understand the Court’s opinion, it does not hold or
imply that the State is always powerless to provide private
individuals with necessary protection. Rather, the Court
has reviewed the underlying facts in detail, as will some
times prove necessary where First Amendment values and
state-protected (say, privacy-related) interests seriously
conflict. Cf. Florida Star v. B. J. F., 491 U. S. 524, 533
(1989); Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 499 (1984). That review makes clear
that Westboro’s means of communicating its views con
sisted of picketing in a place where picketing was lawful
and in compliance with all police directions. The picketing
could not be seen or heard from the funeral ceremony
itself. And Snyder testified that he saw no more than the
tops of the picketers’ signs as he drove to the funeral. To
Cite as: 562 U. S. ____ (2011 ) 3
BREYER, J., concurring
uphold the application of state law in these circumstances
would punish Westboro for seeking to communicate its
views on matters of public concern without proportionately
advancing the State’s interest in protecting its citizens
against severe emotional harm. Consequently, the First
Amendment protects Westboro. As I read the Court’s
opinion, it holds no more.
Cite as: 562 U. S. ____ (2011) 1
ALITO, J., dissenting
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]
JUSTICE ALITO, dissenting.
Our profound national commitment to free and open
debate is not a license for the vicious verbal assault that
occurred in this case.
Petitioner Albert Snyder is not a public figure. He is
simply a parent whose son, Marine Lance Corporal Mat
thew Snyder, was killed in Iraq. Mr. Snyder wanted what
is surely the right of any parent who experiences such an
incalculable loss: to bury his son in peace. But respon
dents, members of the Westboro Baptist Church, deprived
him of that elementary right. They first issued a press
release and thus turned Matthew’s funeral into a tumul
tuous media event. They then appeared at the church,
approached as closely as they could without trespassing,
and launched a malevolent verbal attack on Matthew and
his family at a time of acute emotional vulnerability. As a
result, Albert Snyder suffered severe and lasting emo
tional injury.1 The Court now holds that the First
Amendment protected respondents’ right to brutalize Mr.
Snyder. I cannot agree.
I
Respondents and other members of their church have
——————
1 See 580 F. 3d 206, 213–214, 216 (CA4 2009).
2 SNYDER v. PHELPS
ALITO, J., dissenting
strong opinions on certain moral, religious, and political
issues, and the First Amendment ensures that they have
almost limitless opportunities to express their views.
They may write and distribute books, articles, and other
texts; they may create and disseminate video and audio
recordings; they may circulate petitions; they may speak
to individuals and groups in public forums and in any
private venue that wishes to accommodate them; they may
picket peacefully in countless locations; they may appear
on television and speak on the radio; they may post mes
sages on the Internet and send out e-mails. And they may
express their views in terms that are “uninhibited,” “ve
hement,” and “caustic.” New York Times Co. v. Sullivan,
376 U. S. 254, 270 (1964).
It does not follow, however, that they may intentionally
inflict severe emotional injury on private persons at a time
of intense emotional sensitivity by launching vicious ver
bal attacks that make no contribution to public debate. To
protect against such injury, “most if not all jurisdictions”
permit recovery in tort for the intentional infliction of
emotional distress (or IIED). Hustler Magazine, Inc. v.
Falwell, 485 U. S. 46, 53 (1988).
This is a very narrow tort with requirements that “are
rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts
§12, p. 61 (5th ed. 1984). To recover, a plaintiff must show
that the conduct at issue caused harm that was truly
severe. See Figueiredo-Torres v. Nickel, 321 Md. 642, 653,
584 A. 2d 69, 75 (1991) (“[R]ecovery will be meted out
sparingly, its balm reserved for those wounds that are
truly severe and incapable of healing themselves” (inter
nal quotation marks omitted)); Harris v. Jones, 281 Md.
560, 571, 380 A. 2d 611, 616 (1977) (the distress must be
“ ‘so severe that no reasonable man could be expected to
endure it’ ” (quoting Restatement (Second) of Torts §46,
Comment j (1963–1964))).
Cite as: 562 U. S. ____ (2011) 3
ALITO, J., dissenting
A plaintiff must also establish that the defendant’s
conduct was “ ‘so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in
a civilized community.’ ” Id., at 567, 380 A. 2d, at 614(quoting Restatement (Second) of Torts §46, Comment d).
Although the elements of the IIED tort are difficult to
meet, respondents long ago abandoned any effort to show
that those tough standards were not satisfied here. On
appeal, they chose not to contest the sufficiency of the
evidence. See 580 F. 3d 206, 216 (CA4 2009). They did
not dispute that Mr. Snyder suffered “ ‘wounds that are
truly severe and incapable of healing themselves.’ ” Fi
gueiredo-Torres, supra, at 653, 584 A. 2d, at 75. Nor did
they dispute that their speech was “ ‘so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atro
cious, and utterly intolerable in a civilized community.’ ”
Harris, supra, at 567, 380 A. 2d, at 614. Instead, they
maintained that the First Amendment gave them a license
to engage in such conduct. They are wrong.
II
It is well established that a claim for the intentional
infliction of emotional distress can be satisfied by speech.
Indeed, what has been described as “[t]he leading case”
recognizing this tort involved speech. Prosser and Keeton,
supra, §12, at 60 (citing Wilkinson v. Downton, [1897] 2
Q. B. 57); see also Restatement (Second) of Torts §46,
illustration 1. And although this Court has not decided
the question, I think it is clear that the First Amendment
does not entirely preclude liability for the intentional
infliction of emotional distress by means of speech.
This Court has recognized that words may “by their very
utterance inflict injury” and that the First Amendment
does not shield utterances that form “no essential part of
4 SNYDER v. PHELPS
ALITO, J., dissenting
any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in
order and morality.” Chaplinsky v. New Hampshire, 315
U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310
U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any
proper sense communication of information or opinion
safeguarded by the Constitution”). When grave injury is
intentionally inflicted by means of an attack like the one
at issue here, the First Amendment should not interfere
with recovery.
III
In this case, respondents brutally attacked Matthew
Snyder, and this attack, which was almost certain to
inflict injury, was central to respondents’ well-practiced
strategy for attracting public attention.
On the morning of Matthew Snyder’s funeral, respon
dents could have chosen to stage their protest at countless
locations. They could have picketed the United States
Capitol, the White House, the Supreme Court, the Penta
gon, or any of the more than 5,600 military recruiting
stations in this country. They could have returned to the
Maryland State House or the United States Naval Acad
emy, where they had been the day before. They could
have selected any public road where pedestrians are al
lowed. (There are more than 4,000,000 miles of public
roads in the United States.2) They could have staged their
protest in a public park. (There are more than 20,000
public parks in this country.3) They could have chosen any
——————
2 See Dept. of Transp., Federal Highway Administration, Highway Sta
tistics 2008, Table HM–12M, http://www.fhwa.dot.gov/policyinformation/
statistics/2008/hm12m.cfm (all Internet materials as visited Feb. 25, 2011,
and available in Clerk of Court’s case file).
3 See Trust for Public Land, 2010 City Park Facts, http://
www.tpl.org/content_documents/CityParkFacts_2010.pdf.
Cite as: 562 U. S. ____ (2011) 5
ALITO, J., dissenting
Catholic church where no funeral was taking place.
(There are nearly 19,000 Catholic churches in the United
States.4) But of course, a small group picketing at any of
these locations would have probably gone unnoticed.
The Westboro Baptist Church, however, has devised a
strategy that remedies this problem. As the Court notes,
church members have protested at nearly 600 military
funerals. Ante, at 1. They have also picketed the funerals
of police officers,5 firefighters,6 and the victims of natural
disasters,7 accidents,8 and shocking crimes.9 And in ad
vance of these protests, they issue press releases to ensure
that their protests will attract public attention.10
This strategy works because it is expected that respon
dents’ verbal assaults will wound the family and friends of
the deceased and because the media is irresistibly drawn
to the sight of persons who are visibly in grief. The more
outrageous the funeral protest, the more publicity the
Westboro Baptist Church is able to obtain. Thus, when
the church recently announced its intention to picket the
funeral of a 9-year-old girl killed in the shooting spree in
Tucson—proclaiming that she was “better off dead”11—
their announcement was national news,12 and the church
——————
4 See United States Conference of Catholic Bishops, Catholic Informa
tion Project, http://www.usccb.org/comm/cip.shtml#toc4.
5 See http://www.godhatesfags.com/fliers/20110124_St-Petersburg-FL-
Dead-Police.pdf.
6 See http://www.godhatesfags.com/fliers/20110120_Dead-Volunteer-
Firefighter-Connecting_the_Dots-Baltimore-MD.pdf.
7 See http://www.godhatesfags.com/fliers/20110104_Newburg-and-
Rolla-MO-Tornado-Connecting-the-Dots.pdf.
8 See http://www.godhatesfags.com/fliers/20101218_Wichita-KS-Two-
Dead-Wichita-Bikers.pdf.
9 See http://www.godhatesfags.com/fliers/20110129_Tampa-FL-God-
Sent-Military-Mom-Shooter-to-Kill-Kids.pdf.
10 See nn. 5–9, supra.
11 See http://www.godhatesfags.com/fliers/20110109_AZ-Shooter-
Connecting-the-Dots-Day-2.pdf.
12 See, e.g., Stanglin, Anti-Gay Church Group Plans to Picket Tucson
6 SNYDER v. PHELPS
ALITO, J., dissenting
was able to obtain free air time on the radio in exchange
for canceling its protest.13 Similarly, in 2006, the church
got air time on a talk radio show in exchange for canceling
its threatened protest at the funeral of five Amish girls
killed by a crazed gunman.14
In this case, respondents implemented the Westboro
Baptist Church’s publicity-seeking strategy. Their press
release stated that they were going “to picket the funeral
of Lance Cpl. Matthew A. Snyder” because “God Almighty
killed Lance Cpl. Snyder. He died in shame, not honor—
for a fag nation cursed by God . . . . Now in Hell—sine
die.” Supp. App. in No. 08–1026 (CA4), p. 158a. This
announcement guaranteed that Matthew’s funeral would
be transformed into a raucous media event and began the
wounding process. It is well known that anticipation may
heighten the effect of a painful event.
On the day of the funeral, respondents, true to their
word, displayed placards that conveyed the message prom
ised in their press release. Signs stating “God Hates You”
——————
Funerals, USA Today, Jan. 10, 2011, http://content.usatoday.com/communities/
ondeadline/post/2011/01/anti-gay-church-group-plans-to-picket-tucston
funerals/1; Mohanani, Group to Picket 9-Year-Old Tucson Victim’s
Funeral, Palm Beach Post, Jan. 11, 2011, http://www.palmbeachpost.com/
news/nation/group-to-picket-9-year-old-tucson-victims-1177921.html; Mehta
& Santa Cruz, Tucson Rallies to Protect Girl’s Family from Protesters,
Los Angeles Times, Jan. 11, 2011, http://articles.latimes.com/
2011/jan/11/nation/la-na-funeral-protest-20110112; Medrano, Funeral
Protest: Arizona Rallies to Foil Westboro Baptist Church, Christian
Science Monitor, Jan. 11, 2011, http://www.csmonitor.com/USA/2011/
0111/Funeral-protest-Arizona-rallies-to-foil-Westboro-Baptist-Church.
13 See Santa Cruz & Mehta, Westboro Church Agrees Not to Take
Protest to Shooting Victims’ Funerals, Los Angeles Times, Jan.
13, 2011, http://articles.latimes.com/2011/jan/13/nation/la-na-funeral
protest-20110113; http://www.godhatesfags.com/fliers/20110112_AZ-
Shooter-Mike-Gallagher-Radio-Exchange.pdf.
14 See Steinberg, Air Time Instead of Funeral Protest, N. Y. Times,
Oct. 6, 2006, p. A14.
Cite as: 562 U. S. ____ (2011) 7
ALITO, J., dissenting
and “Thank God for Dead Soldiers” reiterated the message
that God had caused Matthew’s death in retribution for
his sins. App. to Brief for Appellants in No. 08–1026
(CA4), pp. 3787, 3788 (hereinafter App.). Others, stating
“You’re Going to Hell” and “Not Blessed Just Cursed,”
conveyed the message that Matthew was “in Hell—sine
die.” Id., at 3783.
Even if those who attended the funeral were not alerted
in advance about respondents’ intentions, the meaning of
these signs would not have been missed. Since respon
dents chose to stage their protest at Matthew Snyder’s
funeral and not at any of the other countless available
venues, a reasonable person would have assumed that
there was a connection between the messages on the
placards and the deceased. Moreover, since a church
funeral is an event that naturally brings to mind thoughts
about the afterlife, some of respondents’ signs—e.g., “God
Hates You,” “Not Blessed Just Cursed,” and “You’re Going
to Hell”—would have likely been interpreted as referring
to God’s judgment of the deceased.
Other signs would most naturally have been understood
as suggesting—falsely—that Matthew was gay. Homo
sexuality was the theme of many of the signs. There were
signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags
Doom Nations,” and “Fag Troops.” Id., at 3781–3787.
Another placard depicted two men engaging in anal inter
course. A reasonable bystander seeing those signs would
have likely concluded that they were meant to suggest
that the deceased was a homosexual.
After the funeral, the Westboro picketers reaffirmed the
meaning of their protest. They posted an online account
entitled “The Burden of Marine Lance Cpl. Matthew A.
Snyder. The Visit of Westboro Baptist Church to Help the
Inhabitants of Maryland Connect the Dots!” Id., at 3788.15
——————
15 The Court refuses to consider the epic because it was not discussed
8 SNYDER v. PHELPS
ALITO, J., dissenting
Belying any suggestion that they had simply made general
comments about homosexuality, the Catholic Church, and
the United States military, the “epic” addressed the Sny
der family directly:
“God blessed you, Mr. and Mrs. Snyder, with a re
source and his name was Matthew. He was an arrow
in your quiver! In thanks to God for the comfort the
child could bring you, you had a DUTY to prepare that
child to serve the LORD his GOD—PERIOD! You did
JUST THE OPPOSITE—you raised him for the devil.
. . . . .
“Albert and Julie RIPPED that body apart and
taught Matthew to defy his Creator, to divorce, and to
commit adultery. They taught him how to support the
largest pedophile machine in the history of the entire
world, the Roman Catholic monstrosity. Every dime
they gave the Roman Catholic monster they con
demned their own souls. They also, in supporting sa
tanic Catholicism, taught Matthew to be an idolater.
. . . . .
“Then after all that they sent him to fight for the
United States of Sodom, a filthy country that is in lock
step with his evil, wicked, and sinful manner of life,
putting him in the cross hairs of a God that is so mad
——————
in Snyder’s petition for certiorari. Ante, at 3, n. 1. The epic, however, is
not a distinct claim but a piece of evidence that the jury considered in
imposing liability for the claims now before this Court. The protest and
the epic are parts of a single course of conduct that the jury found to
constitute intentional infliction of emotional distress. See 580 F. 3d,
at 225 (“[T]he Epic cannot be divorced from the general context of
the funeral protest”). The Court’s strange insistence that the epic “is
not properly before us,” ante, at 3, n. 1, means that the Court has not
actually made “an independent examination of the whole record,” ante,
at 7 (internal quotation marks omitted). And the Court’s refusal to
consider the epic contrasts sharply with its willingness to take notice of
Westboro’s protest activities at other times and locations. See ante,
at 9.
Cite as: 562 U. S. ____ (2011) 9
ALITO, J., dissenting
He has smoke coming from his nostrils and fire from
his mouth! How dumb was that?” Id., at 3791.
In light of this evidence, it is abundantly clear that
respondents, going far beyond commentary on matters of
public concern, specifically attacked Matthew Snyder
because (1) he was a Catholic and (2) he was a member of
the United States military. Both Matthew and petitioner
were private figures,16 and this attack was not speech on a
matter of public concern. While commentary on the Cath
olic Church or the United States military constitutes
speech on matters of public concern, speech regarding
Matthew Snyder’s purely private conduct does not.
JUSTICE BREYER provides an apt analogy to a case in
which the First Amendment would permit recovery in tort
for a verbal attack:
“[S]uppose that A were physically to assault B, know
ing that the assault (being newsworthy) would provide
A with an opportunity to transmit to the public his
views on a matter of public concern. The constitu
tionally protected nature of the end would not shield
A’s use of unlawful, unprotected means. And in some
circumstances the use of certain words as means
would be similarly unprotected.” Ante, at 1 (concur
ring opinion).
This captures what respondents did in this case. In
deed, this is the strategy that they have routinely em
ployed—and that they will now continue to employ—
inflicting severe and lasting emotional injury on an ever
growing list of innocent victims.
IV
The Court concludes that respondents’ speech was
protected by the First Amendment for essentially three
——————
16 See 533 F. Supp. 2d 567, 577 (Md. 2008).
10 SNYDER v. PHELPS
ALITO, J., dissenting
reasons, but none is sound.
First—and most important—the Court finds that “the
overall thrust and dominant theme of [their] demonstra
tion spoke to” broad public issues. Ante, at 8. As I have
attempted to show, this portrayal is quite inaccurate;
respondents’ attack on Matthew was of central impor
tance. But in any event, I fail to see why actionable
speech should be immunized simply because it is inter
spersed with speech that is protected. The First Amend
ment allows recovery for defamatory statements that are
interspersed with nondefamatory statements on matters
of public concern, and there is no good reason why respon
dents’ attack on Matthew Snyder and his family should be
treated differently.
Second, the Court suggests that respondents’ personal
attack on Matthew Snyder is entitled to First Amendment
protection because it was not motivated by a private
grudge, see ante, at 9, but I see no basis for the strange
distinction that the Court appears to draw. Respondents’
motivation—“to increase publicity for its views,” ibid.—did
not transform their statements attacking the character
of a private figure into statements that made a contri
bution to debate on matters of public concern. Nor did
their publicity-seeking motivation soften the sting of their
attack. And as far as culpability is concerned, one might
well think that wounding statements uttered in the heat
of a private feud are less, not more, blameworthy than
similar statements made as part of a cold and calculated
strategy to slash a stranger as a means of attracting pub
lic attention.
Third, the Court finds it significant that respondents’
protest occurred on a public street, but this fact alone
should not be enough to preclude IIED liability. To be
sure, statements made on a public street may be less
likely to satisfy the elements of the IIED tort than state
ments made on private property, but there is no reason
Cite as: 562 U. S. ____ (2011) 11
ALITO, J., dissenting
why a public street in close proximity to the scene of a
funeral should be regarded as a free-fire zone in which
otherwise actionable verbal attacks are shielded from
liability. If the First Amendment permits the States to
protect their residents from the harm inflicted by such
attacks—and the Court does not hold otherwise—then the
location of the tort should not be dispositive. A physical
assault may occur without trespassing; it is no defense
that the perpetrator had “the right to be where [he was].”
See ante, at 11. And the same should be true with respect
to unprotected speech. Neither classic “fighting words”
nor defamatory statements are immunized when they
occur in a public place, and there is no good reason to treat
a verbal assault based on the conduct or character of a
private figure like Matthew Snyder any differently.
One final comment about the opinion of the Court is in
order. The Court suggests that the wounds inflicted by
vicious verbal assaults at funerals will be prevented or at
least mitigated in the future by new laws that restrict
picketing within a specified distance of a funeral. See
ante, at 10–11. It is apparent, however, that the enact
ment of these laws is no substitute for the protection
provided by the established IIED tort; according to the
Court, the verbal attacks that severely wounded petitioner
in this case complied with the new Maryland law regulat
ing funeral picketing. See ante, at 11, n. 5. And there is
absolutely nothing to suggest that Congress and the state
legislatures, in enacting these laws, intended them to
displace the protection provided by the well-established
IIED tort.
The real significance of these new laws is not that they
obviate the need for IIED protection. Rather, their enact
ment dramatically illustrates the fundamental point that
funerals are unique events at which special protection
against emotional assaults is in order. At funerals, the
emotional well-being of bereaved relatives is particularly
12 SNYDER v. PHELPS
ALITO, J., dissenting
vulnerable. See National Archives and Records Admin. v.
Favish, 541 U. S. 157, 168 (2004). Exploitation of a fu
neral for the purpose of attracting public attention “in
trud[es] upon their . . . grief,” ibid., and may permanently
stain their memories of the final moments before a loved
one is laid to rest. Allowing family members to have a few
hours of peace without harassment does not undermine
public debate. I would therefore hold that, in this setting,
the First Amendment permits a private figure to recover
for the intentional infliction of emotional distress caused
by speech on a matter of private concern.
V
In reversing the District Court judgment in favor of
petitioner, the Court of Appeals relied on several grounds
not discussed in the opinion of this Court or in the sepa
rate opinion supporting affirmance. I now turn briefly to
those issues.
First, the Court of Appeals held that the District Court
erred by allowing the jury to decide whether respondents’
speech was “ ‘directed specifically at the Snyder family.’ ”
580 F. 3d, at 221. It is not clear whether the Court of
Appeals thought that this was a question for the trial
judge alone or a question on which the judge had to make
a preliminary ruling before sending it to the jury. In
either event, however, the submission of this question to
the jury was not reversible error because, as explained
above, it is clear that respondents’ statements targeted the
Snyders.
Second, the Court of Appeals held that the trial judge
went astray in allowing the jury to decide whether re
spondents’ speech was so “ ‘offensive and shocking as to
not be entitled to First Amendment protection.’ ” Ibid.This instruction also did respondents no harm. Because
their speech did not relate to a matter of public concern, it
was not protected from liability by the First Amendment,
Cite as: 562 U. S. ____ (2011) 13
ALITO, J., dissenting
and the only question for the jury was whether the ele
ments of the IIED tort were met.
Third, the Court of Appeals appears to have concluded
that the First Amendment does not permit an IIED plain
tiff to recover for speech that cannot reasonably be inter
preted as stating actual facts about an individual. See id.,
at 222. In reaching this conclusion, the Court of Appeals
relied on two of our cases—Milkovich v. Lorain Journal
Co., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46—but
neither supports the broad proposition that the Court of
Appeals adopted.
Milkovich was a defamation case, and falsity is an ele
ment of defamation. Nothing in Milkovich even hints that
the First Amendment requires that this defamation ele
ment be engrafted onto the IIED tort.
Hustler did involve an IIED claim, but the plaintiff
there was a public figure, and the Court did not suggest
that its holding would also apply in a case involving a
private figure. Nor did the Court suggest that its holding
applied across the board to all types of IIED claims. In
stead, the holding was limited to “publications such as the
one here at issue,” namely, a caricature in a magazine.
485 U. S., at 56. Unless a caricature of a public figure can
reasonably be interpreted as stating facts that may be
proved to be wrong, the caricature does not have the same
potential to wound as a personal verbal assault on a vul
nerable private figure.
Because I cannot agree either with the holding of this
Court or the other grounds on which the Court of Appeals
relied, I would reverse the decision below and remand for
further proceedings.17
——————
17 The Court affirms the decision of the Fourth Circuit with respect to
petitioner’s claim of intrusion upon seclusion on a ground not addressed
by the Fourth Circuit. I would not reach out to decide that issue but
would instead leave it for the Fourth Circuit to decide on remand. I
would likewise allow the Fourth Circuit on remand to decide whether
14 SNYDER v. PHELPS
ALITO, J., dissenting
VI
Respondents’ outrageous conduct caused petitioner
great injury, and the Court now compounds that injury by
depriving petitioner of a judgment that acknowledges the
wrong he suffered.
In order to have a society in which public issues can be
openly and vigorously debated, it is not necessary to allow
the brutalization of innocent victims like petitioner. I
therefore respectfully dissent.
——————
the judgment on the claim of civil conspiracy can survive in light of the
ultimate disposition of the IIED and intrusion upon seclusion claims.