Snyder v. Phelps

(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.