Public vs. Private: Funerals, Free Speech, and Privacy

grave2.jpgTimothy Zick recently blogged about a lawsuit by a parent of a deceased soldier against a fundamentalist religious group that protested near the funeral. The religious group has been protesting near several funerals for soldiers, and their message is particularly offensive: The group claims that the soldiers died as punishment for a society that permits homosexuality. Read Timothy’s post for more background about the case.

The verdict is now in. From the AP:

A grieving father won a nearly $11 million verdict Wednesday against a fundamentalist Kansas church that pickets military funerals out of a belief that the war in Iraq is a punishment for the nation’s tolerance of homosexuality.

Albert Snyder of York, Pa., sued the Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Lance Cpl. Matthew Snyder, who was killed in Iraq.

The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress. . . .

Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as “Thank God for dead soldiers” and “God hates fags.”

Snyder claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.

While the amount of the verdict strikes me as far too excessive, I am pleased that the plaintiffs won (from what limited information I’ve read about the case). I would like to respond to Timothy Zick’s very thoughtful and compelling argument for why the speech of the protesters should win out over the interests of the family holding the funeral. Timothy argues:

These are all well-worn justifications and responses. But they are also, as I say, somewhat unsatisfying. Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented. One of the central arguments in my book is that our public expressive topography has suffered a slow but steady erosion. The spaces we have left — including all of the sidewalks and public thoroughfares — are critical to the survival of any tangible public expressive culture. This is not an abstract concern. In this light, small contests like the ones concerning funeral protests attain a significance well beyond the speakers and their hateful message. Restricting or supressing the Westboro protesters will likely mean denying supporters the opportunity to pay last respects as well (even silently and respectfully). Well, one might say, that’s no big loss — sidewalks near cemeteries do not seem appropriate places for public expression. More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting.

Although Timothy makes a good point about the gradual restriction of public space, I am inclined to come out in favor of the plaintiffs in this very difficult case. A funeral, although held outside, is not a purely public event. In my work on privacy, I’ve frequently argued about how the simplistic binary division of the world into public and private spaces doesn’t reflect reality very well. As I wrote in The Future of Reputation:

[M]uch of our daily lives occurs in realms that are neither purely public nor purely private. Instead our activities often take place in the twilight between public and private. We used to speak on the phone at home or in closed phone booths, but with cell phones, we now carry out our conversations in a variety of public places. . . . We frequently have conversations in public that we don’t expect to be overheard.

The work of Professors Helen Nissenbaum (NYU Culture & Communication) and Andrew McClurg (Univ. of Memphis Law), among others, also effectively demonstrates how muddy the distinction between public and private is. Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998); Andrew McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989 (1995).

These protests could readily be held elsewhere. They disturbed the tranquility and privacy of a family’s deeply personal occasion. It is true that holding these protests away from the funeral will make them less potent — there is indeed a cost to speech here. But the funeral too is also a form of speech, a quiet and subdued event, which is disrupted by the protesters. The protesters aren’t the only ones trying to speak.

I certainly value space for protests. Protesters should be able to voice their messages vociferously, but there is no need for them to invade a quasi-private event in the process. The funeral is not a purely public event, and the space around it is different from a street corner in Times Square. It is different from the National Mall in Washington, DC. That’s why Timothy’s point about the loss of public space, though well-taken, doesn’t quite work in this context.

UPDATE: Ed Still in the comments points to a Baltimore Sun article that contains details about the case that aren’t in the other stories I’ve read. According to that article:

Three adults and four children picketed the March 10, 2006, funeral at St. John Roman Catholic Church in Westminster. Westboro members insisted that their demonstration, about 1,000 feet from the Catholic church, took place legally. . . .

They said they waved placards — “Thank God for IEDs” and “Fag Troops” among others — near the funeral motorcade to bring attention to their message.

Snyder testified that he never saw the content of the signs as he entered and left St. John’s on the day of his son’s funeral. He read the signs for the first time during television news reports later that day.

These facts make me severely question my position that the plaintiffs should have won. If in fact this protest wasn’t intrusive into the funeral ceremony, then I don’t see the basis for an invasion of privacy or intentional infliction of emotional distress claim.

At this point, given the paucity of reliable and complete facts in media stories, I’m not going to opine anymore until I read a more thorough account of the facts.

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11 Responses

  1. Edward Still says:


    The funeral was not outside — it was inside the St.

    John Roman Catholic Church. The demonstrators were outside — 1000 feet away from the church, according to the Baltimore Sun story.

    Ed Still

  2. Ed,

    Thanks for bringing the Baltimore Sun story to my attention. I’ve revised the post in light of that story. I’m disappointed in the other stories which made me envision the events in the case very differently. They didn’t contain enough information about the nature of the protest to make a good assessment of whether or not it was invasive of privacy. Generally, I’ve learned to distrust media accounts of cases, as they often fail to accurately and completely report the facts — but I let my guard down here. Although the Baltimore Sun story has more facts than the other stories I’ve read, I’d still like to learn more about the facts before I attempt to make any more conclusions about the case.

  3. Tim Zick says:

    Dan makes some good points. As I say, I do find this a very difficult case. I too can’t help but congratulate the families — even if, given that the defendants are impecunious, this will be a mostly symbolic victory.

    I appreciate that the public/private distinction is messier than is often assumed. I mentioned the abortion clinic “sidewalk counselor” cases in my post. Those too involved a claim of “public privacy” — by the women seeking abortions. I have much sympathy for women visiting abortion clinics; yet I have always found the cases limiting speech in public places near the clinics troublesome. At least as a matter of First Amendment doctrine, the speakers in both instances (clinics and funerals) occupied “quintessential” public forum ground. They were not within the clinics or the cemetery gates. Recognition of a privacy interest in these contexts represents something of a slippery slope. My central concern, again, is not with these particular speakers and their access to public space; it is the potential for the rule here “drifting” into other places on the expressive topography. I think a carefully drawn time, place, and manner restriction would do far less harm to the First Amendment than a tort verdict of this magnitude. There are lots of vulnerable audiences out there. The threat of lawsuits like this may cause other speakers to pause before conveying offensive messages in public.

    It is fascinating that as we give (willingly or otherwise) our privacy away online and through new technologies, we see here and elsewhere an insistence on continued respect for privacy “offline.”

  4. Howard Wasserman says:

    I cannot see how this survives on appeal; I am not entirely sure how it got past summary judgment. Although the verdict does show why unpopular speakers still do not trust juries.

    Whatever the merits of the competing arguments for restricting funeral protests/pickets that Dan and Tim present (and I confess to being in Tim’s camp), the Maryland case, based on the facts in the updated post, does not implicate that debate or that issue.

    First, the fact that this was an outdoor protest of an event occurring inside means the relevant abortion-protest precedent is not Hill v. Colorado, which upheld limits on face-to-face, on-the-street confrontations in the name of privacy. The relevant precedent is Madsen, which, in part, struck down prohibitions on holding signs outside clinics, saying that those inside can just pull the shades (i.e., “avert your eyes” in the Cohen sense).

    Second, the enacted and proposed regulations on funeral picketing generally establish a buffer zone of around 200-300 feet, recognizing that any greater buffer likely would fail constitutional scrutiny. So these protesters actually complied with what ordinarily would be the limitations on the place of their speech.

    Third, the fact that Mr. Snyder did not even see the signs at the time of the funeral should undercut his claim, which is supposed to be based on the unique emotional distress he suffered by hearing/seeing these things said about his deceased son at the time and place of the funeral. But if Mr. Snyder did not learn of the statements until after the fact, then the time and place in which the statements were made does not matter. It suggests that the outcome would have been no different if he had read about comments made about his son on the church’s web site or in a demonstration held ten blocks away or on the other side of town. In other words, the verdict really is based on church members saying reprehensible things about Snyder’s deceased son, about which he found out later on. So we no longer are talking about narrow limits on the time or place in which some expression can take place; we are talking about limits on what can be said about people–no hateful comments about deceased soldiers.

  5. KipEsquire says:

    People seem to be forgetting that this was not a fact pattern involving prior restraint or a criminal penalty. It was a plain vanilla private tort case alleging well-established, if somewhat ephemeral, causes of action (defamation, intrusion upon seclusion, intentional infliction of emotional distress). The First Amendment therefore plays a minuscule, if any, role.

    People are also omitting the fact that much of the lawsuit concerned defamatory statements about the family that WBC posted on its website, and not the protest per se. (The complaint is available here.)

    You may have a First Amendment right to defame someone. You do not, however, have a First Amendment right not to be sued for that defamation or for the IIED that results from it.

    The far more intellectually coherent critique is the rather high damages. But that’s a whole other blogpost.

  6. Howard Wasserman says:

    The First Amendment actually has a substantial role to play in “plain vanilla private tort cases”: The First Amendment imposes limitations on the plaintiff’s ability to pursue and recover on any torts when the allegedly tortious conduct involves protected expression. Defamation is the obvious example, but the First Amendment comes into play in other torts, including I/I/E/D and invasion of privacy.

    Yes, the complaint asserted a claim for defamation, but the case apparently was submitted to the jury only on I/I/E/D and privacy and that was the basis for the verdict. My guess, from reading the Complaint, is that most of the statements at issue could not support a defamation judgment–they either were not directly “of and concerning” Matthew Snyder or they were not falsifiable assertions of fact that could be “proven” as true or false.

    Courts necessarily have had to police the boundaries of I/I/E/D so it cannot be used as an end-run around the strict limits on liability for defamation. Intentionally outrageous and harmful expression is, except in limited circumstances not obviously applicable on these facts, constitutionally protected from *any* liability–prior restraint, criminal punishment, or civil money damages.

    And, again, the fact that we are talking about the substance of what Westboro says on its web site, and not on what happened at the funeral, shows that this is not about place, but about a broader effort to stop some expression.

  7. BR says:

    Agreeing with the previous post, one certainly does have a “First Amendment right” not to have civil tort damages imposed for defamtion or libel in certain circumstances. One of the most famous First Amendment cases of all, New York Times v. Sullivan, established key First Amendment boundaries on civil defamation/libel actions.

    It is true that one cannot claim First Amendment protection from purely private actions against speech. For example, I have no First Amendment protection if my private corporation employer fires me for criticizing its activities. I might have protection under whistle-blower statutes but not under the First Amendment.

    The awarding of damages for libel or defamation in a civil lawsuit, however, is not “private action” the way a private corporation firing an employee is private action. Civil damages are awarded by courts (the government) acting under statutory or common law (the government) with damages awards enforced by sheriffs or other arms of the government empowered to enforce judgments (the government). The entire process is government process and as such must accord with the Constitution. To the extent that the civil tort system impinges on free speech in a way that would be Consitutionally prohibited if it were implemented by say the criminal law process, it is just as subject to Constitutional limitation.

  8. Jonty hoe says:

    We always go for a public speech and public gathering for important issues. We have a freedom to speak and we should follow the fundamental rights to implement the social values for a better society.

  9. Jonty hoe says:

    We always go for a public speech and public gathering for important issues. We have a freedom to speak and we should follow the fundamental rights to implement the social values for a better society.

  10. Jonty hoe says:

    We always go for a public speech and public gathering for important issues. We have a freedom to speak and we should follow the fundamental rights to implement the social values for a better society.