MU Law Expert Submits Brief Defending Funeral Protestors’ Free Speech

July 16, 2010

Story Contact(s):
Nathan Hurst, hurstn@missouri.edu, 573-882-6217

COLUMBIA, Mo. – As the United States Supreme Court prepares to hear the controversial funeral protest case, Snyder v. Phelps, Christina Wells, a professor at the University of Missouri School of Law and free speech law expert, along with other free speech scholars and the law firm of Skadden, Arps, Slate, Meagher & Flom, has filed an amicus brief in support of protecting the offensive speech at issue.

Snyder v. Phelps stems from a suit by Albert Snyder, the father of deceased Marine Matthew Snyder, against Reverend Fred Phelps and members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress. Snyder argues that the protesters violated his rights when they disrupted his son’s funeral and his mourning process with anti-gay signs and chants.

Wells’ brief emphasizes that Phelps complied with all applicable laws and official directives to stay several hundred feet away from the Matthew Snyder funeral ceremony and the father did not see the Phelps’ signs until he later viewed news coverage of the funeral and the church’s website.  Thus, any disruption of the funeral or Snyder’s mourning was based solely on the offensiveness of Phelps’ constitutionally protected speech.

“Phelps’s admittedly offensive speech falls squarely within the bounds of First Amendment protected speech,” Wells said. “The Supreme Court protects offensive speech because it contributes to discussion on issues of public interest and because efforts to censor such speech are usually motivated by dislike of the speaker’s message.”

Wells’ brief also argues that the First Amendment does not allow punishment of speech solely because of its emotional impact on the listener.

“Punishment of speech requires some kind of external harm, such as noisy and disruptive behavior, threats, lies or harassment, before finding speech unprotected,” Wells said.

The brief concludes that permitting tort liability for offensive speech would chill public discourse by allowing massive damage awards based on subjective criteria and would contradict the very purpose of the First Amendment.

Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law. Wells has worked professionally as an associate at Skadden, Arps, Slate, Meagher & Flom in Chicago and as an associate at Heller, Ehrman, White & McAuliffe in Los Angeles. She has been on the University of Missouri School of Law faculty since 1993. Wells’ brief can be found at http://tinyurl.com/35muqgs. Wells’ article, Privacy and Funeral Protests, can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1106363.