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United States: Appeals Court Holds First Amendment Protects “Repugnant” Picketing of Military Funeral

(Oct. 2, 2009) The United States Court of Appeals for the Fourth Circuit has held that the picketing of a military funeral by members of a church holding signs with “distasteful” and “repugnant” messages was protected by the First Amendment to the U.S. Constitution.

In 2006, members of the Westboro Baptist Church picketed the funeral of Marine Lance Corporal Matthew A. Snyder, who had been killed in Iraq in the line of duty. Picketers carried signs disparaging homosexuals and stating that troop deaths in Iraq were a form of divine punishment for the nation's tolerance of homosexuality. A member of the church also wrote disparaging comments about Snyder and his family on the church website.

Snyder's father filed suit against the church and church members. Eventually, three state claims were tried before a jury in 2007: intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. A jury ruled for Snyder, awarding him $2.9 million in compensatory damages and $8 million in punitive damages.

The Fourth Circuit reversed the jury verdict and award, for two primary reasons. First, it held that the trial court had impermissibly delegated to the jury the question of whether or not the nature of the speech was protected by the First Amendment – a question of law rather than fact and thus within the purview of the court, not the jury.

Second, the Fourth Circuit found that the lower court erroneously focused on the Snyders' status as private individuals. The court said that First Amendment protections do not depend upon the public or private status of the speech's target. Rather, the court ruled, the question was whether the speech in question asserted “actual facts” or “rhetorical hyperbole.” Supreme Court precedent has held that the First Amendment protects statements that cannot be reasonably believed to be “actual facts” about the individual. The court found that the church's picket signs and the web posting could not reasonably be believed to state actual facts and therefore constituted protected rhetorical hyperbole. (Snyder v. Phelps, No. 08-1026 (4th Cir. Sept. 24, 2009), available at