Ruling: Snyder v. Phelps

In analyzing, critiquing, upholding, or overturning U.S. court cases, it is common practice to look at previous judgements. What judgements have we made in the past? Do they apply to current cases? Is there a common standard for each case, or should it vary depending on our current situation, like wartime precedents? These questions complicate judgements, but they also ensure that we continue to assert our freedoms found in the Bill of Rights. The  particular right we find ourselves coming back to time and again is the first amendment right to the freedom of speech. 

In our shifting global society, though, it is important to think of human rights on a scale larger than that which governs our country’s rights. Today, I will assert the right to the freedom of speech not only for the United States, but for the world. 

In the case of Snyder v. Phelps, I, as a hypothetical judge in the International Court of law, would uphold the U.S. ruling and find Phelps’ speech protected under U.S. precedents and the first amendment, as well as global standards such as the Universal Declaration of Human Rights. It is important to note that in this hypothetical (though globally applicable) situation, we are no longer analyzing a freedom of speech found in the U.S. Bill of Rights, we are analyzing the freedom of speech for all people. In order to maintain a just world, we must define these freedoms internationally, not just locally.

In the case of Snyder v. Phelps, Fred Phelps, founder of the Westboro Baptist Church, traveled to Maryland to protest at the funeral of Matthew Snyder, who was killed fighting in Iraq. Matthew’s father, Albert Snyder, saw the tops of Phelps’ offensive signs (including sayings such as, “Thank God for Dead Soldiers,” “Priests Rape Boys,” and “You’re Going to Hell”) as they picketed about 1,000 yards from the church where the funeral was held, 30 minutes before the ceremony. Snyder filed against Phelps and the Westboro Baptist Church for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy, but the U.S. Supreme Court found Phelps not guilty, and protected under the first amendment because the statements were on matters of public concern, although hyperbolic and rhetorical.

It is important, as stated before, to judge this case on a national and international level. Because of this, we will first be analyzing the judgement on a national level, and then on an international level. The first, and possibly most important, distinction in this case, is that Phelps and his congregation followed the rules of protest from the local authorities, and were peaceful in nature. U.S. Philosopher and free speech advocate Alexander Meiklejohn (1872-1964), made an important distinction between public and private speech. Public speech (such as the speech of Phelps, since it was on public land), has the most protection, while private speech can be censored, to an extent. This view of free speech will help us define what would be allowed internationally and what may have limited rights, especially in a global context where some speech may be considered particularly blasphemous or hurtful to certain special audiences. Regardless, Phelps would still be protected under Meiklejohn.

Furthermore, we must consider John Stuart Mill’s (1806-1873) harm principle found in his writings, On Liberty. Mill states that in our right to the freedom of speech, we must also distinguish between the intent to harm, versus the intent to offend. Although Phelps’ speech was definitely offensive to many, it had no harmful intent, as a peaceful protest. Phelps called local authorities before the funeral to make sure he was not breaking any rules by protesting, and did not affect the funeral proceedings in any major way. 

Aside from historical United States standards, Snyder v. Phelps must be held to new global standards, as well. The Universal Declaration of Human Rights states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers,” in article 19. According to the UDHR, Phelps’ speech would still be protected, but unfortunately not all nations are idealistic enough to uphold the UDHR. Countries like Germany do not protect Nazi speech or propaganda, and other countries like Pakistan only protect Muslim speech, and not the speech of Christians. Although the logistics of enforcing such a right as the freedom of speech may be difficult on an international level, it is important that the United States act as a thought leader on the subject, and that world organizations enforce the UDHR as much as they can. Realistically, we may not be able to change every unjust international law immediately, but this does not stop private groups from advocating for justice, as was done in Pakistan with Asia Bibi when she spoke out on her Christian beliefs. 

Where we may struggle with upholding the Snyder v. Phelps ruling, and others like that of Asia Bibi’s speech, is when it can be argued that the speech had the intent to intimidate or cause harm. When does the freedom of speech cross the lines and become a hate crime? Some would say that Phelps did cross the line. In fact, in 2009, the United Kingdom banned Phelps, or any member of Westboro Baptist Church, to enter their nation, asserting that, “Both these individuals have engaged in unacceptable behaviour by inciting hatred against a number of communities... The Government has made it clear it opposes extremism in all its forms... The exclusions policy is targeted at all those who seek to stir up tension and provoke others to violence regardless of their origins and beliefs." Even Mill’s Harm Principle may waver in the case of Phelps according to some, as who is to say that Phelps did not cause emotional harm, or incite hatred against a number of communities? This is when we enter a slippery slope. 

If we rewind to the previous judgements made by my classmates in the case of Asia Bibi, we will see that either way, some party may be hurt by speech. Asia Bibi was tormented by the women in her Muslim community, while the women felt personally attacked, and possibly emotionally harmed, by Asia’s speech. So what do we protect? Only some speech? Only the speech of the party which we as a nation, or globally, favor? It seems that would be unjust. So, we must protect speech regardless of the emotional harm it may cause, for the other option does nothing to advance thought or beliefs, or public opinion. 

What we must do, then, is define more strictly what harmful and threatening speech may be. This issue was brought up in the 2003 United States case of Virgina v. Black, where it was held that cross burning (or other acts which could be defined as free speech, but also acts of intimidation) could only be a criminal offense if the intent to intimidate is proven. Since we cannot prove, conclusively, that Phelps’ intent was to intimidate, and since there was no harm in this case, and only offense, we cannot convict Phelps, as much as some parties may like to. When speech blurs the lines of expression versus hate, we must always go back to Mill and cases like Virginia v. Black to analyze the intent and implications of the speech, rather than analyzing the feelings of those who may have been affected y that speech. 

In the final ruling of Snyder v. Phelps, Chief Justice Roberts made a poignant remark: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” In the United States, as well as globally, we must not punish a speaker if we deem what they say as offensive. It should always be up to the prosecution to prove that the speech caused physical harm, and only then may it be punished. As with the precedent of 1969 case Brandenberg v. Ohio, we must only prosecute speech if it is found to incite imminent lawless action, as opposed to inciting feelings of disgust or betrayal.