Westboro was sued when its members staged a picket outside the military funeral of a Marine. The picketing was peaceful and took place on land 1000 feet away from the funeral. A Maryland jury held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages for the torts of intentional infliction of emotional distress, intrusion upon seclusion. The trial court remitted the punitives.
Whether the First Amendment prohibits holding someone liable for its speech turns largely on whether that speech is of public or private concern, Where matters of purely private significance are at issue, First Amendment protections are often less rigorous.
Members of the Westboro Baptist Church, a religious organization known for its members’ public protests of homosexuality in the U.S, have traveled to military funerals to express their that God hates the U.S for its tolerance of homosexuality and that God is killing soldiers as punishment for the Nation’s policies. Westboro staged a picket outside the funeral of a Marine killed in Iraq. The picketing was peaceful and took place on land 1000 feet away from the funeral.
Does a peaceful picketing outside a funeral violate the Constitution?
No, while speech is powerful and can stir people to action and inflict great pain as it did here, this Nation has chosen to protect even hurtful speech on public issues to ensure that we do not stifle public debate. Thus, Westboro shall be protected from tort liability for picketing in this case.
The First Amendment does not entirely preclude the liability for the intentional infliction of emotional distress by means of speech. Here, respondents brutally attacked the petitioner and this attack, which was certain to inflict injury, was central to respondents‘ strategy for attracting public attention. This strategy works well because it is expected that respondents‘ verbal assaults will wound the family and friends of the deceased and attract the media’s attention. Respondents‘ outrageous conduct inflicted great injury and the majority now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.
A State can sometimes regulate picketing on matters of public concern despite the First Amendment protections given to public speech. Westboro’s means of communicating its views consisted of picketing in a place where it was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral itself as the record shows. To restrict such picketing does not proportionately advance the State’s interest in protecting its citizens against severe emotional harm.
Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach because it is subject to reasonable time, place and manner restrictions that are consistent with the standards announced in this Court’s precedents. It is said that distress done by Westboro’s picketing turned on the content and viewpoint of the message conveyed rather than any interference with the funeral itself. Moreover, given that Westboro’s speech was at a public place on a matter of public concern, the speech is entitled to special protection under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arousing contempt.