Albert Snyder has argued that a protest led by Reverend Fred Phelps in the moments leading up to the funeral of his son, Marine Lance Corporal Matthew Snyder who died in Iraq, “intentionally inflicted emotional distress.” Reverend Phelps and the protesters held signs that read “God Hates You,” “You’re Going to Hell” and “God Hates Fags.”
Making the case that the First Amendment should protect this kind of speech is difficult, not so much because it strains the principles of free speech, but more because it puts strain on our sense of decency. We experience a moral gag reflex upon hearing the language used by Reverend Phelps and the protesters, because when we put ourselves in the place of Mr. Snyder, we cannot help but feel as he does — angry.
Unfortunately for Albert Snyder, however, the permissibility of speech is not measured by its decency. Rather, we measure the permissibility of speech by the harm that it causes, and more specifically, the speech’s intent to cause harm. By this measure, there is no way to prove that Reverend Phelps intended to cause emotional distress for Mr. Snyder when he led the protest before Matthew Snyder’s funeral.
Sean Summers, Mr. Snyder’s lawyer, has attempted to strengthen his client’s claim by arguing that it was not simply the indecent nature of the speech that warrants a judgment against Phelps; more specifically, it was the targeted nature of the speech that made the protest insulting enough to inflict emotional distress. However, the claim that the speech was “targeted” is subjective. What might be targeted, harmful speech to one individual could be viewed as untargeted, but still obnoxious speech to another.
From a different perspective, one might contend that the intent of the speech need not bring about emotional distress to be in violation of the First Amendment — a reckless disregard for the mere likelihood of causing emotional harm is enough. However, even recklessness would be a hard sell for Albert Snyder, given that Reverend Phelps and his congregation took deliberate, necessary steps to confine their protest within legal limits. They notified the police of the protest and the congregation followed instructions to stand one-thousand feet away from the church entrance within a cordoned-off area. Furthermore, the protesters left before the funeral service began. Reverend Phelps took every step required to ensure that his protest did not violate the statutory limits that are in place to protect the rights of private citizens.
Hence, was the protest unsettling? Yes. Was it indecent? Without doubt. However, was the protest by Reverend Phelps and his congregation unconstitutional? No.
Snyder v. Phelps is a reminder of the scope we have afforded free speech in American society. The First Amendment was designed specifically to protect fringe points of view and the sometimes outrageous language that is associated with those viewpoints (think Klu Klux Klan rallies). The ability to express viewpoints, especially fringe ones, is integral to democracy and free society. Hence, what is at stake in Snyder v. Phelpsis is the strength of our commitment to free speech as it stands the test of decency. I do not believe we should overlook the anger and hurt felt by Albert Snyder. But we should also not be fooled into letting visceral feelings cloud the reality that the First Amendment exists precisely for the purpose of protecting the speech that is in question here.