From the SelectedWorks of David G Lake
September 7, 2012
“On the Streets of Doomed America” : Snyder v.
Phelps Through a Millian Lens
David G Lake, Arizona State University
Available at: http://works.bepress.com/david_lake/1/
“On the Streets of Doomed America”1: Snyder v. Phelps Through a Millian Lens
David Lake
INTRODUCTION
Marine Lance Corporal Matthew Snyder was killed in the line of duty while
serving his country in Iraq.2 When his funeral was scheduled at a Maryland Catholic
church, the Westboro Baptist Church resolved to picket the funeral, as it had done with
approximately 600 other funerals.3 While remaining about 1,000 feet from the church
where the funeral was held, in compliance with police instructions, the parishioners of the
Westboro Baptist Church (“WBC”) demonstrated with signs declaring such things as
“God Hates Fags,” “You’re Going to Hell,” “Thank God for IEDs,” and “Thank God for
Dead Soldiers.”4 Lance Corporal Snyder’s father (“Mr. Snyder”) was understandably
offended by the demonstration, interpreting the demonstration to be directed specifically
at his son and his family. Subsequently Mr. Snyder filed suit against the WBC for,
among other things, “publicity given to private life, intentional infliction of emotional
distress, [and] intrusion upon seclusion.”5
In August 2010, just two months before the United States Supreme Court heard
oral argument in Snyder v. Phelps, the National Constitution Center conducted a survey
Andrea Stone, Fred Phelps’ Daughters May Misread Bible but They Know the Law,
AOL NEWS, Mar. 3, 2011, http://www.aolnews.com/2011/03/03/fred-phelps-daughtersmay-misread-bible-but-they-know-the-law/.
2
Snyder v. Phelps, 131 S.Ct. 1207, 1213 (2011).
3
Id.
4
Id.
5
Id. at 1214.
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in conjunction with the Associated Press.6 That survey asked American adults about their
views on freedom of speech. Seventy percent of respondents said that “people should
have the right to say what they believe even if they take positions that seem deeply
offensive to most people,” while twenty-eight percent answered that the right to say what
one believes should be restricted if it is deeply offensive to most people.7 When the same
question was posed a year earlier in 2009, only twenty-one percent of respondents felt
that the right to speak should be restricted if the belief is deeply offensive.8 The timing of
the seven percent increase coincides with the considerable amount of media attention
Snyder received. Whether or not the correlation is genuine, the fact remains that in 2010
more Americans felt that, if certain ideas were too offensive, the right to free speech
should be restricted.
Freedom of speech, which over a quarter of Americans felt should be abridged if
it’s offensive, is considered under the canon of constitutional legal writings to be one of
the bedrock principles of human liberty. Aside from the First Amendment, books such as
On Liberty by John Stuart Mill examine the necessity and intricacies of speech.
Although many Americans may be opposed to the Supreme Court’s ruling in Snyder, the
Court protected traditional application of the freedom of speech by finding in favor of the
WBC. Specifically, the Supreme Court’s analysis of public vs. private speech issues in
Snyder v. Phelps conforms to John Stuart Mill’s analysis of speech regulation in “On
Liberty,” indicating that current freedom of speech jurisprudence continues to reflect
Mill’s analysis and traditional ideas of this essential freedom.
GfK Roper Public Affairs & Corporate Communications, “The AP-National
Constitution Center Poll,” August 11–August 16, 2010.
7
Id. at 8.
8
Id.
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I. PUBLIC SPEECH
The 2011 decision in Snyder is based on many years of Supreme Court
interpretation of First Amendment speech issues. Traditionally, the Court’s interpretation
of free speech issues can be divided into two broad categories: public speech and private
speech. Accordingly, the majority in Snyder begins its analysis by stating, “Whether the
First Amendment prohibits holding Westboro liable for its speech . . . turns largely on
whether that speech is of public or private concern.”9 As quoted in the Snyder opinion,
the 1983 case Connick v. Myers defines public speech as speech that can “be fairly
considered as relating to any matter of political, social, or other concern to the
community.”10 Public speech is considered to be so important that it “occupies the
highest rung of the hierarchy of First Amendment values, and is entitled to special
protection.”11 To decide if speech is public or private, and whether it deserves the high
level of “special protection” afforded by Connick, the Court must “examine the ‘content,
form, and context’ of that speech, ‘as revealed by the whole record.’”12
If speech is determined to be public speech, and is entitled to “special protection”
by the First Amendment, then it may not be restricted simply “because it is upsetting or
arouses contempt.”13 The Court upheld this principle in what may properly be considered
one of the most controversial Supreme Court decisions in history: Texas v. Johnson. In
Texas v. Johnson, commonly known at “The Flag-Burning Case,” the Court found that
although Mr. Johnson offended many people by burning the American flag as a protest
9
Snyder, 131 S.Ct. at 1215.
Connick v. Myers, 461 U.S. 138, 146 (1983).
11 Id. at 145.
12 Snyder, 131 S.Ct. at 1216 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 761 (1985)).
13 Snyder, 131 S.Ct. at 1219.
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against the policies of the Reagan Administration,14 it was still protected speech.15 Much
to the chagrin of some Americans, the Court stated, “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.”16
A. PUBLIC SPEECH PRINCIPLES IN “ON LIBERTY”
Johnson was not the first instance of permitting a wide range of ideas regarding
public matters, no matter how popular or offensive, to be communicated in a public
forum. In the book “On Liberty,” originally published in 1859, John Stuart Mill
emphasized the necessity of permitting a wide range of ideas to be communicated to the
public, regardless of truth or popularity.17 Mill explained that this free exchange of
opinions, often referred to as the “marketplace of ideas,” is absolutely essential to a
democracy.18 It is essential because the freedom to express one’s self in the marketplace
of ideas is necessary to find “truth.” According to Mill, “it is the duty of governments,
and of individuals, to form the truest opinions they can; to form them carefully, and never
impose them upon others unless they are quite sure of being right.”19 In speaking of the
concept of the marketplace of ideas in Abrams v. United States, Oliver Wendell Holmes
declared:
14
Texas v. Johnson, 491 U.S. 397, 399 (1989).
See id.
16 Id. at 414.
17
See John Stuart Mill, On Liberty, in IDEAS OF THE FIRST AMENDMENT, 318, 328
(Vincent Blasi, 2006).
18
Id. at 326 (stating, “No society in which these liberties are not, on the whole, respected,
is free”).
19
Id. at 328.
15
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The ultimate good desired is better reached by free trade in ideas–that the
best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which
their wishes can safely be carried out. That at any rate is the theory of our
Constitution.20
The marketplace of ideas, which is firmly embraced by freedom of speech jurisprudence,
requires the free trade of ideas. Just as free trade in economic markets leads to the
predominance of the best products and services, the free exchange of ideas assists in the
pursuit of truth, as advocated by Mill. Similarly, just as a properly regulated market
prevents excesses and market weaknesses, the free exchange of ideas may properly be
tempered to prevent harm to others while still allowing society to discover truth.
Although the free exchange of ideas is encouraged, Mill recognized that it is
human nature to desire to impose one’s opinions upon other people and to refuse a forum
to opinions that appear contradictory. Thus, in a democratic government where the
people exercise the power, “the tyranny of the majority” is likely to present itself.21
When a majority of “the most active part of the people . . . desire to oppress a part of their
number,” society itself becomes the tyrant, not the government.22 To prevent this,
“precautions are as much needed . . . as against any other abuse of power.”23 According
20
Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting).
Mill, supra note 17, at 320.
22
Id. at 320-21.
23
Id. at 320.
21
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to Mill, silencing contrary opinions is a great evil,24 and preventing the oppression of
expression requires the government to impose “some rules of conduct.”25
In modern American society, denying free speech is often understood to be
dangerous simply because it creates inequality among people. While this may be true,
Mill argued that it is evil for an even greater reason: “it is robbing the human race[,]
posterity as well as the existing generation,” of an idea that “may possibly be true.”26 It
should not matter that many or most people in society view the opinion as false, because
“every age [has] held many opinions which subsequent ages have deemed not only false
but absurd; and it is certain that many opinions, now general, will be rejected by future
ages.”27
Truth evolves from age to age, and as Mill notes, individuals and governments
have an affirmative duty to pursue the truth.28 If individuals and governments breach this
duty by silencing an opinion, it does not matter if the opinion is true or false. Mill
explains, “if the opinion is right, [society is] deprived of the opportunity of exchanging
error for truth: if wrong, they lose, what is almost as great a benefit, the clearer
perception and livelier impression of truth, produced by its collision with error.”29 To
better ensure that American society receives this benefit of a multitude of opinions, the
Court has consistently held that, “The constitutional protection does not turn upon ‘the
24
Id. at 327.
Id. at 321.
26
Id. at 327.
27
Id. at 328.
28
Id.
29
Id. at 327.
25
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truth, popularity, or social utility of the ideas and beliefs which are offered.”30 With the
Court so holding, certain “rules of conduct” are put in place to prevent the tyranny of the
majority and ensure society’s earnest search for truth.
Determining what is truth and what is falsehood, however, is a difficult endeavor.
Although individuals and governments have a duty to discover truth and act according to
it, “we can never be sure that the opinion we are endeavouring to stifle is a false
opinion.” 31 It may be impossible to obtain “absolute certainty” of the truthfulness of an
opinion, “but there is assurance sufficient for the purposes of human life. We may, and
must, assume our opinion to be true for the guidance of our own conduct.”32 In order to
obtain that assurance of opinion, one must “be able to hear [contrary opinions] from
persons who actually believe them; who defend them in earnest, and do their very utmost
for them.”33 Without such rigorous advocacy of opposing opinions, one is unlikely to
sufficiently form an assurance of the “truth.”
B. PUBLIC SPEECH AND MILLIAN PHILOSOPHY IN SNYDER
One is hard-pressed to imagine a group of Americans that more earnestly defends
a minority opinion than the WBC. Margie Phelps herself, the daughter of the WBC’s
leader Fred Phelps, represented the WBC before the Supreme Court,34 doing her “very
utmost”35 to defend the minority view she espouses. Together the members of the WBC
30
New York Times Co. v. Sullivan, 84 S.Ct. 710, 271 (1964) (quoting N.A.A.C.P. v.
Button, 83 S.Ct. 328, 344 (1963)).
31
Mill, supra note 17, at 327.
32
Id. at 329.
33
Id. at 341.
34
Stone, supra note 1.
35
Mill, supra note 17, at 341.
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have conducted nearly 47,000 demonstrations in over 800 cities.36 The WBC’s signs,
slogans, and demonstrations can be categorized as homophobic, anti-semitic, and
religiously extreme. The caustic public statements and demonstrations promulgated by
the WBC are often met with derision by the media and the American public in general.
With so much opposition to such offensive speech, why did eight of the nine justices on
the Supreme Court feel comfortable ruling in the WBC’s favor?
Toward the beginning of the majority opinion, the Court echoed Connick by reemphasizing that “speech on public issues occupies the highest rung of the hierarchy of
First Amendment values.”37 Indeed, it explained the importance of “uninhibited,
robust”38 free speech on public issues by declaring, “speech concerning public affairs is
more than self-expression; it is the essence of self-government.”39 The idea of
uninhibited free speech on public issues is a reflection of Mill’s understanding of the
needs of a free society. Like the Court’s majority opinion, Mill declares that “No society
in which these liberties are not, on the whole, respected, is free, whatever may be its form
of government; and none is completely free in which they do not exist absolute and
unqualified.”40
Armed with the understanding of the necessity of uninhibited free speech on
public issues, the Court proceeds to examine whether the WBC’s speech constituted
36
God Hates Fags, Numbers, http://godhatesfags.com/index.html (last visited Dec. 8,
2011).
37
Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).
38
Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
39
Snyder, 131 S.Ct. at 1215 (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).
40
Mill, supra note 17, at 326 (referring to three aspects of human liberty inherent in the
freedom of speech, namely, first, “liberty of conscience,” which includes “freedom of
opinion and sentiment,” second, “liberty of tastes and pursuits,” and third, “the liberty . . .
of combination among individuals.”).
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protected public speech. In doing so, it examines (1) the content of the speech and (2) the
location of the demonstration.41 The Court held that “the ‘content’ of Wesboro’s signs
plainly relates to broad issues of interest to society at large, rather than matters of ‘purely
private concern.’”42 The Court reasoned that, although the messages:
May fall short of refined . . . 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 . . . are matters of public import
. . . and even if a few of the signs . . . were viewed as containing messages
related to Matthew Snyder or the Snyders specifically . . . the overall
thrust and dominant theme of Westboro’s demonstration spoke to broader
public issues.43
Like the Court’s reasoning that even unrefined social commentary must be protected in
order to better society, Mill insists that “it is the duty of governments, and of individuals,
to form the truest opinions they can . . . and never impose them upon others unless they
are quite sure of being right.”44 To fulfill that duty and pursue true opinions of social
issues, the government must protect public speech no matter how unrefined.
What if the speech goes beyond “unrefined,” however, and becomes exceedingly
offensive? What if the speech is so outrageous that most people who receive the
communication are likely to be both offended and disgusted? The Court held that,
41
See id. at 1216-1219.
Id. at 1216 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
759 (1985)).
43
Id. at 1217.
44 Mill, supra note 17, at 328.
42
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although the WBC had signs such as “God Hates You” and “You’re Going to Hell,”45
which are likely to offend an unwilling listener such as Mr. Snyder, the speakers are not
precluded from communicating their message simply because it would offend the average
person. Citing precedent, the Court reasoned, “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 . . . the burden
normally falls upon the viewer to avoid further bombardment . . . simply by averting [his]
eyes.”46 The government cannot protect individuals from public, albeit offensive, speech.
It becomes the responsibility of the viewer or listener to simply not view or listen to the
message any longer if he or she wishes not to receive the message.
If the Court permitted the government to preclude offensive speech and did not
place the burden upon the unwilling listener to avoid the speech, it would epitomize
Mill’s “tyranny of the majority.” When speech becomes offensive enough (as the WBC’s
message has proved to be), the majority of people in society will “desire to oppress”47 the
minority voicing that opinion. The majority, now a tyrant “more formidable than many
kinds of political oppression,” will try to “compel all [minority] characters to fashion
themselves upon the model of its own.”48 If the tyranny of the majority is not reined in,
as the Court did here, free speech is destroyed and the marketplace of ideas shuts down.
Therefore, by protecting even offensive speech and placing the burden upon the listener
to avoid the speech, the Court prevents American society from becoming Mill’s
tyrannous majority.
45
Snyder, 131 S.Ct. at 1213.
Id. at 1220 (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 210-211 (1975)).
47
Mill, supra note 17, at 320.
48
Id. at 321.
46
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The Court further prevented a tyranny of the majority from regulating the WBC’s
speech by limiting the scope of what the jury may determine. Mr. Snyder sued the WBC
for intentional infliction of emotional distress, and the lower courts held that the jury
should be instructed that it could “hold Westboro liable . . . based on a finding that
Westboro’s picketing was ‘outrageous.’”49 The Court held, however, that
“outrageousness” is “a highly malleable standard.”50 With such a subjective standard, the
Court explained that the jury instructions, “would allow a jury to impose liability on the
basis of the jurors’ tastes or views,”51 and in such a passionate case as this, “highly
malleable” standards pose “a real danger” for a jury to become “an instrument for the
suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t] expression.’”52 In
other words, the Court believed that if the jury is allowed to hold the WBC liable by
deeming the WBC’s actions “outrageous,” the standard will invite the jury, as
representatives of the majority, to “oppress a part of their number”53 and compel the
WBC to “fashion themselves upon the model of its own.”54 Thus, in accordance with
Mill’s philosophy, the Court did not permit the jury to do so.
Although the content of the WBC’s speech was protected, the Court also needed
to determine if the manner of the WBC’s speech warranted protection. To make the
determination, the Court moved from the context of the speech to the location of the
protest. The Court notes that the WBC:
49
Snyder, 131 S.Ct. at 1219.
Id.
51
Id. (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988)).
52
Snyder, 131 S.Ct. at 1219 (quoting Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485, 510 (1984)).
53
Mill, supra note 17, at 320.
54
Id. at 321.
50
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Chose to stage its picketing at the Naval Academy, the Maryland State
House, and Matthew Snyder’s funeral to increase publicity for its views . .
. Westboro conducted its picketing peacefully . . . at a public place
adjacent to a public street. Such space occupies a ‘special position in
terms of First Amendment protection.’55
The Court’s holding that the picketing took place in traditional public fora, including a
public street, is supported by the reasoning that “public streets and sidewalks have been
used for public assembly and debate.”56 In other words, a public forum such as a street,
sidewalk, or the Maryland State House is a place where the free exchange of ideas
traditionally occurs; for that reason, those locations should be afforded protection as
public fora. Traditionally, people practice their freedom to congregate and communicate
ideas in a public area such as a street or a park in order to increase publicity for their
views. In doing so, people hope that their opinions will be “accepted in the competition
of the market,”57 and will be embraced as true by a greater number of people. By
protecting free speech in public fora, the Court protects a free exchange of opinions in the
Millian “marketplace of ideas,” and assists individuals and the government in pursuing
the formation of “the truest opinions.”58
In his dissent, Justice Alito countered the majority’s opinion by explaining his
view that the location of the protest on a public street should not be dispositive. He saw
“no reason 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
55
Snyder, 131 S.Ct. at 1217-18 (quoting U.S. v. Grace, 461 U.S. 171, 180 (1983)).
Snyder, 131 S.Ct. at 1218 (quoting Frisby v. Schultz, 487 U.S. 474, 480 (1988)).
57
Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting).
58
Mill, supra note 17, at 328.
56
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from liability.”59 Recognizing the sensitivity of the situation, the majority replied to
Justice Alito by stating that, “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.”60 According to the majority, the fact that the speech was on a
street, which is traditionally considered a public forum, indicates that the speech
contributes a certain degree of social or political value. Consequently, the Court is
reluctant to label the speech as “actionable,” and affords it a certain level of protection.
This way, the WBC’s opinions and ideas can be added to the national discourse, or the
“marketplace of ideas,” and help the country in the pursuit of truth, regardless of whether
their opinions prove valid.
II. PRIVATE SPEECH
As the Court makes clear, its analysis of the WBC’s liability, “turns largely on
whether [WBC’s] speech is of public or private concern.”61 Justice Alito’s dissent argues
that the WBC’s speech, because it took place outside of a funeral, turns the otherwise
public speech into private speech. This is a major point of disagreement between Justice
Alito and the majority. Before delving into analysis of whether or not the speech is
protected, however, the Court establishes the jurisprudence surrounding issues of private
speech.
The Court emphasizes that “‘[N]ot all speech is of equal First Amendment
importance,’ however, and where matters of purely private significance are at issue, First
59
Snyder, 131 S.Ct. at 1227 (Alito, J., dissenting).
Id. at 1229, n.4.
61
Id. at 1215.
60
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Amendment Protections are often less rigorous.”62 Private speech is considered to be that
speech which “concerns no public issue”63 and is “solely in the individual interest of the
speaker.”64 Private speech does “nothing to inform the public”65 regarding public issues.
The difference between the protections afforded to public speech and those afforded to
private speech is essential, and the standards are different:
[B]ecause 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 selfcensorship’ on matters of public import.66
In other words, heavy restrictions on private speech are more tolerable than on public
speech because the implications are different. By restricting private speech, the public
free exchange of ideas is not threatened and there is not a “chilling effect” on potential
speakers on “matters of public import” out of fear of liability.
If speech does not concern a public issue or does nothing to inform the public of
that issue, it is deemed to be private speech. In Dun & Bradstreet v. Greenmoss Builders,
Inc., Greenmoss brought a defamation action against Dun & Bradstreet for harm received
when Dun & Bradstreet, a credit rating agency, filed a false report concerning
62
Id. (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)).
Snyder, 131 S.Ct. at 1216 (quoting Dun & Bradstreet, Inc., 472 U.S. at 762).
64 Snyder, 131 S.Ct. at 1216 (quoting Dun & Bradstreet, Inc., 472 U.S. at 762).
65 Snyder, 131 S.Ct. at 1216 (quoting San Diego v. Roe, 543 U.S. 77, 84 (2004)).
66
Snyder, 131 S.Ct. at 1215-16 (quoting Dun & Bradstreet, 472 U.S. at 760).
63
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Greenmoss’s financial well-being.67 The Supreme Court balanced “the State’s interest in
compensating private individuals for injury to their reputation against the First
Amendment interest in protecting this type of expression.”68 In doing so, the Court found
that, “since the credit report was made available to only five subscribers, who . . . could
not disseminate it further, it cannot be said that the report involves any ‘strong interest in
the free flow of commercial information.’”69 The “free flow of commercial information”
is a matter of public concern, and speech involving the “free flow of commercial
information” should be protected. Accordingly, the Court held that the reports (the
speech in question) did “not involve matters of public concern,” thus allowing liability to
be found in such a case.70
In the 1942 case of Chaplinsky v. New Hampshire, the Court also held that certain
forms of speech are not afforded the same protection as public speech.71 In this case, a
member of the Jehovah’s Witnesses was convicted of calling the City Marshal “a God
damned racketeer” and “a damned Fascist.”72 The Court upheld the conviction, holding
that “[F]ighting words – those which by their very utterance inflict injury or tend to incite
an immediate breach of the peace,” are not afforded First Amendment protection.73
Although it may be argued that fighting words may be categorized as “public speech”
because they “tend to incite an immediate breach of the peace,” fighting words are, by
their very nature, meant to inflict personal injury. Calling someone a name that might
67
Dun & Bradstreet, 472 U.S. at 752.
Id. at 757.
69
Id. at 762 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
70
Id. at 763.
71
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
72
Id. at 569.
73
Id. at 572.
68
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provoke him or her (i.e. “damned Fascist”) is purely personal in nature, and adds nothing
of public concern to the public discourse. Fighting words concern no public issues and
do nothing to inform the public in general. Thus, fighting words are not afforded the
same protection as public speech. The injurious nature of this form of private speech
justifies the Court’s decision to not protect it.
A. PRIVATE SPEECH AND THE HARM PRINCIPLE
As previously discussed, Mill strongly advocates a great deal of liberty when it
comes to public speech. For private speech issues, however, Mill believes that society
may rightfully place more restrictions in order to prevent harm. According to Mill, the
idea that restrictions may be placed in order to prevent harm is the object of his essay
“On Liberty.”74 He declares:
[T]he sole end for which mankind are warranted, individually or
collectively in interfering with the liberty of action of any of their number,
is self-protection. That the only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is
to prevent harm to others.75
Mill’s rather libertarian view on only exercising power over an individual “against his
will, to prevent harm to others,” is commonly referred to as the “Harm Principle.” Mill
further explains, “If any one does an act hurtful to others, there is a prima facie case for
punishing him.”76 Therefore, under the Harm Principle, restrictions may be in place to
“prevent harm,” but punishment can also be meted out after the fact. It should be noted,
74
Mill, supra note 17, at 324.
Id.
76
Id. at 325.
75
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however, that conduct that harms another person is not sufficient to justify intervention,
although it is necessary.77 Mill applies the Harm Principle broadly, and not just to
speech. Any actions that are “hurtful to others” fall within the broad reach of the Harm
Principle. Speech certainly falls under that umbrella, and private speech, which tends to
be directed at an individual or a group of individuals with harmful consequences, is
generally included in this category of protection.
Although speech carries with it this umbrella of protection, Mill recognizes that
not all expressions of opinion are immune. When the circumstances surrounding the
expression of the opinion “constitute . . . a positive instigation to some mischievous act,”
“even opinions lose their immunity.”78 In a demonstration of the Harm Principle
applying to public speech in addition to private, Mill gives the example of “[a]n opinion
that corn-dealers are starvers of the poor,” and states that expression of such an opinion
“may justly incur punishment when delivered orally to an excited mob.”79 This “corndealer principle” essentially says that even simple opinions lose their protection under the
Harm Principle if it amounts to incitement, which can easily result in individual harm.
Jeremy Waldron examines Mill’s Harm Principle by questioning if moral
distress–“the fact that someone is distressed because of what he takes to be the
immorality or the depravity of another’s behavior”–counts as “harm” under the Harm
Principle.80 This includes action that “is not directly harmful . . . [but] still . . . may be
perceived as indecent, insulting, degrading, threatening, or distressing in less tangible
77
Jeremy Waldron, Mill and the Value of Moral Distress, in IDEAS OF THE FIRST
AMENDMENT, 405, 407 (Vincent Blasi, 2006).
78
Mill, supra note 17, at 354-55.
79
Id. at 355.
80
Waldron, supra note 77, at 406.
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ways.”81 Although “immoral” material like pornography may disturb many people,
Waldron argues that being disturbed and made uneasy by such material is not a sufficient
“harm” in Mill’s view. Mr. Snyder would beg to differ with Waldron’s understanding of
moral distress as insufficient harm, but Waldron explains why Mill would likely see
moral distress as a positive:
[W]e get an answer which is clear . . . and surprising: far from providing
the basis on an argument for prohibition, moral distress on Mill’s account
is actually a positive feature of deviant actions and life-styles; the outrage
and disturbance that deviance evokes is something to be welcomed,
nurtured, and encouraged in the free society that Mill is arguing for.82
In other words, although Mill supports regulation of speech in situations where harm is
done, the emotional disturbance invoked by moral distress is seen as a positive thing for
society. This is in accordance with Mill’s support of the marketplace of ideas and his
belief that, to form a preference for an opinion, one must “be able to hear [contrary
opinions] from persons who actually believe them; who defend them in earnest, and do
their very utmost for them.”83 If someone suffers moral distress, the emotions conjured
up from deep within will allow that person to advocate his or her views with greater
gusto. Conversely, the emotions that are pricked by moral distress may even cause a
person to question his or her views, resulting in either a stronger affirmation of his or her
prior opinion or the formation of a new one. In either circumstance, “the benefits of free
81
Id. at 405.
Id. at 408.
83
Mill, supra note 17, at 341.
82
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discussion and of the open struggle between competing conceptions . . . outweigh the
costs of . . . confrontation.”84
B. PRIVATE SPEECH AND THE HARM PRINCIPLE IN SNYDER
The offensive nature of the WBC’s signs and the location of their protests are
what garner so much media attention to their cause. Additionally, the offensive nature of
the WBC’s protests and slogans is what provokes so much anger in the American public.
The fact that the church protests soldiers’ funerals is, in and of itself, offensive to many
people. The WBC’s signs with phrases such as “Thank God for 9/11” and “God Hates
Fags”85 can be considered so depraved to some people that it would cause them distress.
Such is the case for Lance Corporal Snyder’s father. Mr. Snyder contended that the
emotional distress inflicted upon him by the WBC’s demonstration during his son’s
funeral justifies punishment against the WBC.86 Certainly Mr. Snyder’s hope was that
not only would punishment be meted out against the WBC, but the WBC’s speech would
be more heavily restricted going forward as well. Assuming, arguendo, that Mr.
Snyder’s distress is sufficient harm under the Harm Principle, Mill’s philosophy would
permit both the punishment of the WBC for past wrongs against him and restrictions of
future WBC speech.87
The Court in Snyder recognized that private speech is less protected than public
speech, and in order to determine if the WBC’s speech should be afforded a high level of
protection, it examines whether or not the speech was private. The only way that the
Court would “shut off discourse solely to protect others from hearing it is [if there is a]
84
Id. at 417.
Snyder, 131 S.Ct. at 1213.
86
Id. at 1214.
87
See Mill, supra note 17, at 324.
85
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showing that substantial privacy interests are being invaded in an essentially intolerable
manner.”88 In other words, the Court was hesitant to place restrictions on speech simply
to protect people from hearing it. If there are substantial privacy interests that are
harmed, however, the Court may make an exception and restrict the speech in order to
protect the listener.
In an effort to encourage the Court to make just such an exception, Mr. Snyder
asked them to apply the captive audience doctrine, essentially saying that he could not
avoid the offensive speech and suffered harm as a result. The Court declined to apply the
captive audience doctrine, and thus declined to make the exception and restrict the
WBC’s speech, because “Westboro stayed well away from the memorial service. Mr.
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.”89 As a result, the Court held that “the First Amendment bars Snyder from
recovery for intentional infliction of emotional distress or intrusion upon seclusion.”90
Mr. Snyder’s substantial privacy interests were not “invaded in an essentially intolerable
manner,”91 and he thus did not suffer enough harm to justify recovery.
Although it is not done expressly, the Court applies Mill’s Harm Principle in its
analysis and its conclusion that Mr. Snyder is barred from recovery. Just as the Court
said that it will not restrict speech simply to protect people from hearing it unless there is
private harm, Mill’s definition of the Harm Principle states: “the only purpose for which
power can be rightfully exercised over any member of a civilized community, against his
88
Snyder, 131 S.Ct. at 1220 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)).
Snyder, 131 S.Ct. at 1220.
90 Id.
91
Snyder, 131 S.Ct. at 1220 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)).
89
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will, is to prevent harm to others.”92 If the Court restricted WBC’s speech during Lance
Corporal Snyder’s funeral, it would certainly be an exercise of power against WBC’s
will. As the Harm Principle states, the restriction can only be justified if the speech
harms other individuals. Here, Mr. Snyder was not sufficiently harmed to justify such an
exercise of power. The WBC remained “approximately 1000 feet from the church,”93 did
not interfere with the funeral, and Mr. Snyder himself could not read what was written on
the signs. Accordingly, the Court held that, although Mr. Snyder suffered a certain level
of moral distress, the harm was not sufficient to justify an exercise of power upon the
WBC’s speech.
Mill’s Harm Principle is further demonstrated in an examination of the Snyder
oral argument. Ms. Phelps, acting as attorney for the WBC, argued that the fighting
words doctrine should not be applied in this case. In an exchange with Justice Ginsburg,
Justice Ginsburg recognized that the fighting words doctrine is a narrow one, requiring
the speech to be such that it would cause a violent “instinctive reaction,”94 to which Ms.
Phelps replies that the doctrine “especially [does not apply] to where there’s just
emotional injury.”95 Then, Ms. Phelps emphasized that intent to instigate a physical
altercation is a requirement of the fighting words doctrine, and noted that the intent of the
WBC’s speech is not to provoke a fight, but to send a message regarding the spiritual
status of Americans.96
92
Mill, supra note 17, at 324.
Snyder, 131 S.Ct. at 1213.
94
Transcript of Oral Argument at 44, Snyder, 131 S.Ct. 1207 (No. 09-751).
95
Id.
96
Id. at 44-45.
93
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As Justice Ginsburg noted in the oral argument, the fighting words doctrine must
be such that the reaction is likely to be violent, causing physical harm to follow. In
accordance with the Harm Principle, the First Amendment does not protect such speech,
and the government may exercise its power either to prevent such an altercation from
occurring, or to punish a speaker guilty of using fighting words. Additionally, as Ms.
Phelps pointed out, the fighting words doctrine does not extend to “just emotional
injury.” Mere emotional injury, at least in this case, may be categorized as “moral
distress,” which Jeremy Waldron defines as emotional distress caused by behavior that
one perceives to be immoral or depraved.97 According to Waldron, moral distress does
not constitute “harm” under Mill’s Harm Principle. Therefore, Ms. Phelps’ argument that
emotional injury does not justify invoking the fighting words doctrine is in accordance
with Mill’s understanding of the Harm Principle.
In opposition to the exchange with Ms. Phelps, Justice Ginsburg also had an
exchange with Mr. Summers, the attorney for Mr. Snyder, regarding whether the WBC’s
signs should be considered private speech and thus not receive First Amendment
protection. Justice Ginsburg asked if an injunction could be obtained against the WBC
because of the nature of their signs. Mr. Summers responded by stating, “the signs that
said ‘God hates you, you are going to hell’ referred directly to Matthew Snyder and we
would hope and believe that the district court could enjoin those types of specific targeted
epithets.”98 Essentially, Mr. Summers argued that the signs constitute private speech, and
the WBC’s manner of speech should not receive the same protection as public speech
because of its offensive, targeted nature and lack of public content. This theory is
97
98
Waldron, supra note 77, at 406.
Transcript of Oral Argument, supra note 94 at 8.
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contrary to Waldron’s understanding of moral distress and the Harm Principle, and is
ultimately contrary to the Court’s opinion as well. Although it may be argued that the
signs do not contribute to public discourse and instead cause emotional distress, the
government is not justified in intervening. As Waldron explains, “the outrage and
disturbance that deviance evokes is something to be welcomed . . . in the free society that
Mill is arguing for.”99 Of course, in the end, the Court sided with Ms. Phelps and did not
hold the WBC’s signs to be unprotected, private speech. In the closing paragraph of the
majority opinion, the Court declared:
Speech . . . can . . . 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.100
The WBC’s signs, although offensive to Mr. Snyder and others, were considered to be
public speech, and Mr. Snyder was accordingly denied the recovery he sought.
In his dissent, Justice Alito maintained that the WBC’s speech was, in fact, not
protected speech, and was directed specifically at Mr. Snyder. He opened his dissent by
declaring, “Our profound national commitment to free and open debate is not a license
for the vicious verbal assault that occurred in this case.”101 According to Justice Alito,
personal attacks such as the WBC’s signs should not be tolerated under the umbrella of
99
Waldron, supra note 77, at 408.
Snyder, 131 S.Ct. at 1220.
101
Snyder, 131 S.Ct. at 1222 (Alito, J., dissenting).
100
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public speech, and “[w]hen grave injury is intentionally inflicted by means of an attack
like the one at issue here, the First Amendment should not interfere with recovery.”102
If Justice Alito were correct in his contention that the WBC intentionally inflicted
“grave injury” upon Mr. Snyder, would the Harm Principle then permit Mr. Snyder to
recover damages and/or support a court injunction against the demonstration? If the
injury were physical (i.e. the result of mob violence incited by the WBC’s
demonstration), the Harm Principle would justify compelling the WBC to cease their
speech and allow Mr. Snyder to recover damages. This is because the speech “produced
evil to some one else,”103 even though that speech may properly be considered to be
public. This determination becomes much more difficult, however, when one remembers
that Mr. Snyder’s “grave injury” was a result of a spoken opinion, and not physical. Mill
recognizes that, under the “corn-dealer principle,” even opinions can lose immunity in
certain situations.104 Here, the opinions expressed do not amount to incitement, as is
required under the corn-dealer principle, and are still afforded immunity. Thus, it appears
that Mill would tend to disagree with Justice Alito. Although Mr. Snyder sustained an
emotional injury by the expression of an opinion, it only amounts to moral distress, and
the opinions expressed by the WBC, although offensive, are still afforded First
Amendment protection.
The majority protected the WBC’s offensive speech in an effort to protect
“uninhibited, robust, and wide-open”105 speech in accordance with Mill’s philosophy on
the marketplace of ideas. Justice Alito attacked the majority’s approach by concluding
102
Id. at 1223.
Mill, supra note 17, at 324.
104
Id. at 354-55.
105
Snyder, 131 S.Ct. at 1215 (quoting New York Times Co. v. Sullivan, 376 U.S. at 270).
103
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his dissent saying, “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.”106 Generally speaking, Justice Alito is correct in this declaration. Open and
vigorous debate of public issues can take place without the debate devolving into
personal attacks directed at private individuals. Under the Harm Principle, brutally
attacking innocent victims is cause for exercising government power. Justice Alito’s
characterization of the speech as a “brutalization of innocent victims,” however, is
inaccurate. It was the expression of an opinion that contributed to the debate of a public
issue, and thus cannot be characterized as private speech. Moreover, the moral distress
resulting from this “brutalization” is to be welcomed in Mill’s society, and is not cause
for government intervention under the Harm Principle.
III. TIME, PLACE, AND MANNER RESTRICTIONS
The law has developed an area that allows the Snyder majority and Justice Alito
to come together, at least to an extent. Time, place, and manner restrictions prevent “the
brutalization of innocent victims,” while simultaneously permitting public issues to be
“openly and vigorously debated.”107 In Hill v. Colorado, the Court upheld a statute that
limited the speech of abortion protestors outside abortion clinics.108 The statute made it
“unlawful for any person within 100 feet of a health care facility's entrance to ‘knowingly
approach’ within 8 feet of another person, without that person's consent, in order to pass
“a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or
106
Snyder, 131 S.Ct. at 1229 (Alito, J., dissenting).
Id.
108
See Hill v. Colorado, 530 U.S. 703 (2000).
107
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counseling with [that] person.”109 The Court found the restriction to be a valid, contentneutral time, place, and manner regulation because it regulated “the places where some
speech may occur,” and not the substance of the speech itself.110 Additionally, the
restriction applied “to all ‘protest’ . . . and to all demonstrators whether or not the
demonstration concerns abortion.”111
Content-neutral time, place, and manner (“TPM”) restrictions preserve public
discourse in the marketplace of ideas, while simultaneously preventing harm under the
Harm Principle. Any ideas of public concern, no matter how offensive or random, may
be communicated to the public and receive free speech protection as long as the TPM
requirements are complied with. Just as a properly regulated market prevents excesses
and market weaknesses, the free exchange of ideas may properly be tempered to prevent
harm to others and simultaneously permit society to pursue truth through TPM
restrictions. As long as the TPM restrictions are content-neutral, the doctrine is in
accordance with Millian philosophy.
So what type of TPM restriction is best suited for facts like those found in
Snyder? Fortunately for this analysis, the WBC did not stop their demonstrations after
the Snyder decision, and other jurisdictions have adopted TPM restrictions for similar
situations.
Id.
Id. at 719.
111
Id. at 725.
109
110
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On January 8, 2011 six people were shot and killed in Tucson, Arizona. Multiple
others were injured, including Congresswoman Gabrielle Giffords.112 Upon learning of
the funerals for the shooting victims, the WBC decided to picket the funeral of a nine
year-old victim of the shooting.113 In response, the Arizona legislature unanimously
passed a law making it a misdemeanor “to picket or conduct other protest activities
within 300 feet of a funeral or burial service.”114
Arizona’s TPM restriction, which includes all pickets and “protest activities” that
occur “within 300 feet of a funeral,” are somewhat less restrictive than the TPM
restrictions in Phelps (the police asked the WBC to remain at least 1,000 feet from the
funeral). Such a restriction permits the WBC to say what they want and when they want.
The demonstration may even still be within the line of sight of funeral-goers, but it does
not interfere with the funeral. The WBC (or anyone else, no matter the message of their
demonstration) simply cannot demonstrate within a certain distance of a funeral. Thus,
the integrity of the marketplace of ideas is preserved, and potential harm (perhaps even
mere moral distress) is avoided.
IV. CONCLUSION
The correct choice is also often the painful one. Although the majority of
Americans may find the WBC’s signs and demonstrations to be repulsive, under the law
the church’s demonstrations must be given the same protection as any other message that
Jack Gillum, Timeline Shows Loughner’s Actions Hours Before Arrest, USA TODAY,
Jan. 16, 2011, http://www.usatoday.com/news/nation/2011-01-14-loughnertimeline_N.htm.
113
Naimah Jabali-Nash, Westboro Baptist Church Target of New Law Banning Protest at
Ariz. Shooting Victims’ Funerals, CBS NEWS, Jan. 12, 2011,
http://www.cbsnews.com/8301-504083_162-20028271-504083.html.
114
Id.
112
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falls under the category of public speech. Mill advocates the free exchange of opinions in
the marketplace of ideas as essential to a free society, and insists that the majority may
not exercise its power over the minority unless the minority’s actions violate the Harm
Principle. Even offensive opinions are protected. Judge Learned Hand, as quoted in the
majority opinion in New York Times v. Sullivan, said that the First Amendment
“presupposes that right conclusions are more likely to be gathered out of a multitude of
tongues, than through any kind of authoritative selection. To many this is, and always
will be, folly; but we have staked upon it our all.”115 Twenty-eight percent of
Americans116 may, in fact, consider the Court’s decision in Snyder v. Phelps to be folly.
Nonetheless, the Constitution protects the WBC’s speech as long as they comply with
appropriate time, place, and manner restrictions. For this reason, the WBC or anyone
else “can still stand on the streets of doomed America and warn people they have to obey
God.”117
115
New York Times Co. v. Sullivan, 84 S.Ct. 710, (1964) (quoting United States v.
Associated Press, 52 F.Supp 362, 372 (D.C.S.D.N.Y.1943).
116
GfK Roper Public Affairs & Corporate Communications, supra note 6 at 8.
117
Stone, supra note 1.
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