Freedom of Speech After Snyder v. Phelps: A Lesson for LEOs

The news, in every form, has been buzzing this past week about the United States Supreme Court’s opinion in Snyder v. Phelps. This is the case involving protests by a church at the funerals of United States service members. Although the media did not focus on this issue, this church also protested at the funerals of firefighters and LEOs. You can read the full opinion here and, as always, I encourage you to do so. The opinion contains a summary known as a syllabus. However, you should take the time to read the entire opinion. Opinions from the United States Supreme Court on the First Amendment are relatively rare. Therefore, you will likely learn a lot from the opinion as the Court reviews past cases in light of the facts of this case. Part of that discussion relates to the First Amendment protection afforded matters of public concern. That is a critical analysis for LEOs.

First, let’s discuss the opinion from the United States Supreme Court. As you probably guessed, the news stories missed several key facts concerning both the reasoning and basis of the Court’s decision. I have come to expect this as court opinions do not lend themselves to sound bites. This is especially true of the opinions from the United States Supreme Court. As an example, read the Court’s opinion in Columbia v. Heller regarding Second Amendment rights. I know many of you are familiar with that opinion.

The Court’s opinion in Snyder was not focused upon the vile statements made by the protesters. In fact, it appears that the protesters did not dispute that the statements were offensive. While this was a critical reason for the $10,900,000 jury verdict, the Fourth Circuit Court of Appeals was focused upon whether or not the statements, however vile, were protected by the First Amendment. Like the Fourth Circuit, the USSC was required to analyze the specific facts surrounding the protest. I found some of those facts surprising.

• The protest took place approximately 1,000 feet from the church where the funeral was held.
• The protesters have publicized the same message for 20 years.
• The protesters have picketed nearly 600 funerals.
• Several buildings separated the picket site from the church.
• The picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses.
• None of the picketers entered church property or went to the cemetery.
• The picketers did not yell or use profanity, and there was no violence associated with the picketing.
• 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.
• 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.
• The funeral procession passed within 200 – 300 feet of the picketers.
• The statements were not provably false, and were expressed solely through hyperbolic rhetoric.
• The picketers obtained a permit and conducted their protest within the strict requirements of that protest.

The USSC protected the speech of the picketers, in large part, because the picketers made a case that their protest involved matters of “public concern.” This is critical for LEOs. This public concern protection allows LEOs to engage in the political process and voice their opinions regarding everything from the effect of layoffs on public safety to the danger posed by allowing LEOs to drive vehicles at high speeds when the odometer passes 150,000 miles….or more. The public concern doctrine is important. You should read the opinion to learn more about it. While it is not a bright line rule, the Court relies upon it often. The opinion actually strengthens the public concern doctrine and for that reason, LEOs will likely rely on this opinion in the future.

Justice Samuel Alito was the sole dissenter in the opinion. As he states,”Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.  . . . On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations.  . . . Allowing family members to have a few hours of peace without harassment does not undermine public debate.” Finally, he wrote, “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 [Snyder].”

The Court pointed out that this opinion is very narrow and applies only to the facts before the Court in this case. As Justice Breyer stated in his concurring opinion,  “The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings.” Some 44 states and the federal government have recently enacted statutes to prevent or limit these types of protests. It remains to be seen if those statutes will survive the scrutiny of the USSC. Of course, it is the LEOs on the street who will supervise those future protests and uphold the law including this recent opinion from the USSC.

As the Snyder opinion holds, “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.” While I may not agree with the way this case turned out, I do support your right as LEOs to speak on matters of public concern. Toleration of extreme divergent views is the price we pay for freedom as one man’s divergent view is another man’s moderate opinion. Given the suppression of free speech throughout the world, I much prefer our Constitution and our system.

Remember that the USSC said the picketers could not be held liable for money damages in our courts. However, I believe there is a higher authority who will judge the picketers. When they face that judgment, Marine Lance Corporal Matthew Snyder will be watching. I venture a guess they will seek his forgiveness and intervention at that time.

Stay safe.