Eli Fink Summer 2010

Sticks and Stones Can Break My Bones But Words Will Never Hurt

Me (and if they do I can’t sue)

I. Introduction

Matthew1 Snyder was a marine. He climbed through the ranks

from Private to Lance Corporal until he was killed in Iraq.

Fallen soldiers and their families are entitled to a special

funeral replete with military honors. Lance Corporal Snyder’s

family was planning such a funeral.

While the Snyder family wept and grieved, the Phelps family

planned a funeral protest. The Phelps’ are members of the

Westboro Baptist Church (WBC). The controversial church has made

headlines with its impassioned protests at funerals of soldiers

who have died in Iraq and Afghanistan. The WBC maintains that

God kills U.S. soldiers as retribution for the country’s

immorality and in particular for tolerance of homosexuality,

abortion and overall greed. Protesters picket the funerals and

carry signs espousing their opinions. The WBC travel from their

home state of Kansas to picket funerals across the country.

Armed with their homemade signs saying “Semper Fi Fags”, “Thank

God for Dead Soldiers” and “Thank God for IEDs” the group’s

1 The facts and procedural history for the case have been culled

from the Petition for Writ of Certiori available on Westlaw at

20009 WL 5115222 (U.S).

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hateful message is loud and clear. This kind of speech is

presumably protected under the First Amendment of the

Constitution.

The Snyder funeral was another opportunity for the WBC to

convey their message. One family’s grief was another’s chance to

espouse hate.

Snyder was so distraught over the protest at his son’s

funeral he suffered extreme emotional distress. His emotional

distress prompted a lawsuit against Phelps. At the time of the

writing of this paper, the Supreme Court of the United States

has granted certiorari to Snyder’s claim. This paper will

analyze the merits of his tort claim and the protections the

First Amendment affords hate speech.

II. Facts and Procedural History

On March 3, 2006, Marine Lance Corporal Matthew Snyder was

killed in the line of duty during a tour in Iraq. As per

military protocol, two United States Marines visited the Snyders

in their home and delivered the news that their son had died.

The Snyders made arrangements for a funeral in Westminster,

Maryland. Obituary notices were placed in newspapers so that

those who wished to attend the funeral were informed as to its

whereabouts.

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Fred Phelps is the founder of the WBC in Topeka Kansas. He

is the only pastor of the church whose membership is

approximately 70 members. Nearly the entire membership is

related to Phelps. The church practices a very fundamentalist

version of Christianity. They believe that God hates

homosexuals, hates and punishes the United States for its

tolerance of homosexuals in society and in the military.

A major component of the church is their picketing of

military funerals. WBC targeted Snyder’s funeral and publicized

their intentions to picket in a news release on March 8, 2006.

On the day of the funeral, the WBC was situated 200-300

feet away from the procession. Snyder tried to put the WBC out

of his mind and focus on the burial of his son. During the

procession, Snyder glanced in the direction of the protest and

he saw the signs the WBC members were holding.

One of the WBC’s signs read “Thank God for Dead Soldiers”.

Snyder took this to mean that the WBC was “thanking God [his]

son was dead”. Other signs seemed directed at the deceased, such

as “You’re going to Hell” and “God Hates You”. Snyder said that

these signs made him sick.

After the funeral, the WBC continued to make defamatory

comments directed at Snyder. The WBC proclaimed that God “killed

Matthew so that His servants would have an opportunity to preach

His words to the U.S. Naval Academy at Annapolis, the Maryland

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Legislature, and the whorehouse called St. John Catholic Church

at Westminster where Matthew fulfilled his calling.”

Snyder has testified his mental and physical wellbeing has

been affected by the acts of the WBC. For example, Snyder’s

diabetes has significantly worsened since the verbal attacks.

The harms Synder suffered led to a lawsuit for intentional

inflict of emotional distress (IIED) against Phelps. The jury

found in favor of Snyder and awarded him $10.9 million in

compensatory and punitive damages. The Phelps’ moved for a

“judgment as a matter of law, judgment notwithstanding the

verdict, reconsideration and rehearing, a new trial, relief from

judgment, relief of law and equity, and remittitur, alleging,

inter alia, that their conduct was absolutely protected under

the First Amendment and, in the alternative, that Mr. Snyder did

not meet the elements of the claims alleged.”

The District Court rejected these claims, however the court

granted remittur of the $8 million punitive damages and the

award was lowered to $2.1 million.

The District Court addressed the First Amendment defense by

stating that there is no absolute First Amendment right for any

and all speech directed by private individuals against other

private individuals2.

2 See Dun & Bradstreet, Inc. v. Greenmoss Builders 472 U.S. 749,

758 (1985).

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The court also expressed an interest in allowing a

plaintiff to recover in tort for intentionally harmful conduct.

In their words, “an individual’s First Amendment rights must be

balanced against a state’s interest in protecting its citizens”.

Phelps appealed to the Fourth Circuit. They reversed,

holding that Phelps was absolutely protected by the first

amendment. The Court relied on Hustler Magazine, Inc. v.

Falwell3. This case provides those who speak harmful speech with

First Amendment protection from tort claims.

The analysis turned on the type of speech WBC invoked.

Matters of public concern that fail to contain a “provably false

factual connotation”, and are of “rhetorical hyperbole” are

protected under the First Amendment. Since the issues raised by

the signs were of public concern, such as homosexuals in the

military and the moral conduct of United States citizens they

were entitled First Amendment protection.

Snyder has appealed to the Supreme Court of the United

States. The appeal asserts, that as a private figure, Snyder

should not bear the burden of proof to show that WBC’s

statements could reasonably be read to state actual facts. This

would differentiate strongly from Hustler, which involved public

figures. Further, the appeal claims that WBC’s speech was not of

public concern. They were epithets directed at Snyder. On these

3 Hustler Magazine, Inc., v. Falwell, 485 U.S. 46 (1987).

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grounds, Snyder requests the Supreme Court of the United States

reverse the Fourth Circuit’s reversal and reinstate the damages

awarded by the lower court.

The Supreme Court will likely decide this issue on the

nuances of the particulars of this case. The Court will

determine whether speech about rights of homosexuals, the merits

of the war on Iraq and Christian Fundamentalism in general are

of public concern. Further, the issues of “time, place and

manner” will be explored. This argument is not likely to succeed

as the IIED claim is not based on the “time, place and manner”

of the act. In addition, the court will decide on the issue of

invasion of privacy with regard to funeral protests in general.

The next section will deal with tort claims for outrageous

speech in general.

III. Discussion

Snyder’s claim for IIED has failed appellate review and its

failure in the Supreme Court is being predicted. This section

will examine the two basic claims at Snyder’s disposal, Fighting

Words and IIED.

Fighting Words

Snyder sued under the tort of IIED. Snyder’s claim is that

when speech is so outrageous, the First Amendment no longer

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protects the speech. An alternative view that would have the

WBC’s speech reside outside the scope of First Amendment

protections is to argue that WBC’s speech amounted to “fighting

words”. “Fighting words” is a very limited doctrine and exists

so that a state may prevent speech that would cause “imminent

lawless action”.4 The Minnesota Supreme Court has explained that

there is a necessity that society let victims and perpetrators

know that this is unacceptable behavior.5

Case law weighs very heavily in favor of open discourse and

free speech. It is notable that there are other rights the

Constitution protects that may at times be at loggerheads with

the First Amendment. Namely, the Fourteenth Amendment guarantees

equality and non-discrimination. Yet, hate speech is in-effect

protected under the First Amendment unless it can be wrangled

into the strict construct of “fighting words”.

From a social perspective there are several reasons not to

limit hate speech. Two compelling reasons follow: First, public

discourse means that it is possible or even likely that one will

change their mind about an issue after a public dialogue.6

4 Texas v. Johnson, 491 U.S. 397, 414 (1989).

5 Brief in Opposition to Petition for Writ of Certiorari at 8, In

the Matter of the Welfare of R.A.V., No. 90-7675 (May 7, 1991).

6 Calvin R. Massey, Hate Speech, Cultural Diversity, and the

Foundational Paradigms of Free Expression, 40 UCLA L. Rev. 103,

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Barring hate speech subsumes all further discussion about

an issue for the speaker and for the one about whom the speech

was directed. A hate speech laden protest is an opportunity for

conversation and discourse that may have the effect of changing

the hatred into love. Chilling protests that seem extreme or

unreasonable would preclude this desirable result. That would be

unfortunate. Further, silencing others is not the best way to

combat hate speech. As Justice Brandeis has said: the remedy to

be applied is more speech, not enforced silence.

In Chaplinsky7 the Supreme Court held that Fighting Words

are a category of speech not protected under the First

Amendment. Chaplinsky was a Jehovah’s Witness who was

distributing literature on a street corner. He stood on a

soapbox and denounced other religions as a “racket”. At one

point he said to a bystander, “You are a God damned racketeer”

and “a damned Fascist and the whole government of Rochester are

Fascists or agents of Fascists.” Chaplinsky was arrested and

convicted for violating a local law making it illegal to

threaten another. The Supreme Court upheld the conviction saying

the First Amendment does not protect “insulting or fighting

words – those which by their very utterance inflict injury or

tend to incite an immediate breach of the peace”.

139 (1992).

7 Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).

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The WBC staged a peaceful protest that was monitored by law

enforcement at a safe distance from the funeral. This form of

speech cannot be construed as “fighting words” as there is

certainly no “imminent lawless action”. “Fighting words” is a

very narrow doctrine that is basically limited to the facts of

Chaplinsky.

In contrast, an April 2010 rally of white supremacists on

the lawn of Los Angeles’s city hall was marred by violence.8

Counter protesters viciously attacked two of the white

supremacists causing physical injuries that required medical

treatment. Their speech might satisfy the “fighting words”

requirements as their speech incited immediate lawless action.

The WBC staged a comparatively peaceful protest and did not

incite immediate lawless action. It appears that the Snyders

will not be able to recover for IIED under the “fighting words”

doctrine.

Hustler

Hustler Magazine9 printed a spoof advertisement of Jerry

Falwell having an incestuous relationship with his mother in an

outhouse. Falwell sued for libel and IIED. The trial court jury

8 Robert Faturechi & Richard Winton, White Supremacist Rally

Draws Violent Protesters, L.A. Times, April 18, 2010 at A35.

9 Hustler at 46.

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awarded him $150,000 for the IIED claim and rejected the libel

claim. Hustler appealed and the 4th Circuit affirmed. Hustler

appealed to the Supreme Court and in a landmark decision, the

Supreme Court reversed.

In Hustler the court sets “valued speech” as the tipping

point for speech that is protected versus “valueless speech”

where the speaker acted with “actual malice”, as “valueless

speech” interferes with the truth-seeking function of the

marketplace of ideas. The court establishes a rule that public

officials and public figures may not recover tort damages when

the only harm that they can demonstrate is that the speech is

insulting.

Picketing and protesting is considered speech and is

protected by the First Amendment. The speech of the WBC was not

about a public figure or public official. Decedent was a simple

marine. However, the speech was of public concern. The opinion

of a small Church regarding the morality of their country is

certainly public concern. Dialogue about homosexuals and their

rights goes to very core of civil rights discussions of our day.

Speech of public concern is just as valuable as speech about a

public figure or public official and should be afforded the same

First Amendment protection. Allowing Snyder to sue and recover

damages would have the undesired chilling effect on speech that

is of public concern.

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Reed

Sergeant Brandon Michael Read10 died on September 6, 2004 as

a result of an explosion while serving in the United States

Armed Forces in Iraq. In September 2007, his parents learned

that Dan Fraser was using the name of their son for profit.

Fraser sells T-shirts that say “Bush Lied They Died” and the

names of fallen soldiers in the background. The Reads requested

that Fraser stop using the name of their deceased son on his T-

shirts. Fraser refused.

The Reads sued for the tort of outrageous conduct (as it is

called in Tennessee). They claim that when a vendor ignores the

request of parents to cease using the name of their son, a

reasonable person would say, “that’s outrageous” and are seeking

compensatory and punitive damages.

Fraser’s defense is quite simply, the First

Amendment11. His speech should be protected under Hustler. Both

cases are IIED claims that arise from speech. Hustler has

10 See the complaint filed to the court available at

http://www.carryabigsticker.com/bltd_docs/TN_Read_Frazier_suit.p

df.

11 Clay Calvert, War & [Emotional] Peace: Death in Iraq and the

Need to Constitutionalize Speech Based IIED Claims Beyond

Hustler Magazine v. Falwell, 29 N. Ill. U. L. Rev. 51, 68 (2008).

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established that matters of public concern are protected speech

no matter how offensive those words may be. It does not matter

how outrageous the speech is to the reasonable person. The more

outrageous the speech, the more likely it is to be protected

under the first amendment.

The exception to the rule is where the speech is contains

“a false statement of fact that was made with actual malice”.

Actual malice is with “reckless disregard as to whether or not

it was true”. In the Read case, the burden of proof is on the

Reads to prove that Fraser made a false statement with actual

malice.

While the general public may find Fraser’s act abhorrent,

hateful or even morally wrong, he is protected under the First

Amendment. No amount of money can compensate for the loss of

one’s child to war. Denying the IIED claim of the Reads is in no

way a statement about the value of their son’s life or his

memory. Rather, it is an affirmation of the fundamentals of Free

Speech.

Summary of IIED Claims for Hurtful Speech

“[T]he fact that society may find speech offensive is not a

sufficient reason for suppressing it. Indeed, if it is the

speaker’s opinion that gives offense, that consequence is a

reason for according it constitutional protection. For it is a

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central tenet of the First Amendment that the government must

remain neutral in the marketplace of ideas.”12

The above quotation is the reason Snyder will lose his

appeal and is the reason his loss should be supported. Giving

rise to claims based on “outrageousness” is completely counter

to the premise of Free Speech. The more outrageous the speech is

to society the more protection it warrants. Hustler was the

right result when it was in front of the Supreme Court and the

Fourth Circuit was correct in reversing the lower court’s ruling

based on Hustler.

An Alternative Approach to Facilitate Tort Recovery in First Amendment

Cases

Hustler establishes a good rule. It seems to be immutable.

Yet Hustler is based on an antiquated view of IIED. There is a

flaw in Hustler that modern thinking can expose. Circumventing

Hustler will be Snyder’s best path to recovery.

There is no dispute as to the validity of an IIED claim

based on physical acts not related to speech. The First

Amendment does not protect traditional tort claims, such as

assault and battery. First Amendment protection merely shields

hate speech from IIED claims. Additionally, “fighting words” may

12 FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

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be regulated and are not protected by the First Amendment.

“Fighting words” are words that by their very utterance “inflict

injury or tend to incite an immediate breach of the peace”.13

“Fighting words” were deemed to be such severe speech that they

are said to “inflict injury”.14 Perhaps, “fighting words” are

actionable because the words themselves are more similar to

physical acts of harm then speech. Normally, speech cannot

inflict a harm that rises to the level of physical harm. But

“fighting words” do.

IIED cases have been denied recovery when there are free

speech concerns.15 It is assumed that IIED is similar to

defamation.16 The holding of the Supreme Court in Hustler is

built on that assumption. Defamation and IIED are both non-

physical harms caused by speech. Perhaps this assumption is

erroneous.

13 Chaplinsky at 571-572.

14 See Erwin Chemerinsky, Constitutional Law Principle & Policies 1002,

(3d ed. 2006) for a direct inference from the text of

Chaplinsky.

15 See Hustler, 485 U.S. at 57.

16 Id. at 55.

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Speech has been called a “weapon”.17 Speech has been said to

“inflict injury”.18 Speech can constitute assault.19 Speech is not

mere wind, sound and vibrations of the vocal cords; speech can

be a destructive force, no different from sticks and stones.

Insofar as IIED is an accepted tort, it remains an evolving

tort as science teaches us more about emotional injury. Victims

of emotional trauma suffer emotional symptoms such as anger,

anxiety, sadness and fear in addition to physical symptoms such

as racing heartbeat, aches and pains, fatigue and muscle

tension.20 Modern science describes emotional trauma as

exhibiting physical symptoms. Evolving medical standards have

17 See Id. at 56 for this pointed quote. “The political cartoon

is a weapon of attack, of scorn and ridicule and satire…”.

18 Chaplinsky, 315 U.S. at 571-572.

19 See Elizabeth F. Defeis, Freedom of Speech and International

Norms: A Response to Hate Speech, 29 Stan. J. Int’l L. 57, 129 (1992)

quoting Alexander M. Bickel, The Morality of Consent 71 (1976):

“There is such a thing as verbal violence, a kind of cursing,

assaultive speech that amounts to almost physical aggression,

bullying that is no less punishing because it is simulated… This

sort of speech constitutes an assault.”

20 Helpguide.org, Healing Emotional and Psychological Trauma,

http://helpguide.org/mental/emotional_psychological_trauma.htm

(last visited May 16, 2010).

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moved the locus of the harm of emotional trauma from the mind to

the physical body.

There are descriptions of speech that compare it to

physically destructive tools.21 Emotional trauma is evolving as a

physical malady.22 At one time, IIED was more speculative,

immeasurable in medical terms and was more suspect in the eye’s

of the court and juries. It could be argued that IIED is

evolving into a physical tort similar to assault and battery.

The First Amendment does not protect one who causes a

physical injury to another while they are “speaking”. Using

evolving trends in medicine and taking note of the descriptions

of speech as more than mere words, it is conceivable that IIED

should not be any different than traditional torts caused by

“speech”.

Historically, the courts have been very concerned with

“chilling speech”. Yet, that has not been a sufficient rationale

for protecting tortfeasors who cause physical harms by their

“speech”.23 A battery claim will not fail because of the First

Amendment. Snyder could argue that his IIED claim should be no

21 See supra.

22 See supra.

23 It is fairly obvious that a political activist cannot batter

someone with whom he disagrees as a political statement and be

protected by the First Amendment.

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different than any other tort claim and he should be permitted

to recover for harms suffered at the hand of WBC. IIED claims

should not need to satisfy special thresholds and be barred from

suit in typical circumstances purely because the harms are

caused by words. The effects of those harms are equal to the

effects of harms caused by other types of “speech” that cause

physical harms like assault and battery.

This approach will not open the floodgates of litigation.

Claims will still need to satisfy the very high “outrageousness”

standard of IIED. There must be actual physical harm and the

speech must also be the proximate cause of the harm.

When someone is so affected by words that they cause

physical harms perhaps the speech should be unprotected and

allow for tort claims and let the jury decide if the claim is

meritorious. Snyder should sue for IIED that was caused by the

WBC and recover for the physical harms their speech caused using

this novel theory to justify recovery.

IV. Conclusion

United States jurisprudence has placed the First Amendment

on a pedestal and deservedly so. The free flow of opinions

through the marketplace of ideas is vital to the growth and

development of any country that is concerned with the rights of

its citizens. Every voice must have a chance to be heard and an

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equally vocal opposition may oppose every opinion. Although,

U.S. case law does not recognize a true exception to free speech

for hate speech as many other countries, there is an exception

for “fighting words”. However, “fighting words” is not likely to

slow hate speech as it is rarely successfully invoked.

Meanwhile, hate speech in America has become a near art

form. Protesters like the WBC, organize themselves via the

Internet24 and can target vulnerable, grieving families and

inflict major damage upon them.25 Emotional trauma is being

suffered at the hands of organized protesters and redress is

barred due to First Amendment protections. Evolving trends in

medical science tell us that emotional trauma is not just in the

mind; it is a physical injury.

Perhaps the First Amendment should not be protecting those

who inflict physical harms, even if those harms are caused by

words. A line could be drawn between defamation harms and IIED

harms that cause physical injury, allowing IIED claims to

recover for physical harms caused by speech. Hate speech is an

important ingredient in the marketplace of ideas. However, when

speech causes physical injury, hate speech has gone too far. One

man expressing an opinion is not likely to cause that kind of

injury. Organized groups protesting at vulnerable times and

24 See e.g., Becker, supra, note 1.

25 Id.

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locations would be more likely to cause physical injury. If the

speech is so outrageous and it is the proximate cause of the

physical harm, it should be actionable. Allowing victims of IIED

who have physical symptoms to sue for damages will put a slight

chill in hate speech organizers. That might be a good thing.

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