The Supreme Court has issued its second decision touching on privacy issues in a short amount of time.  In Snyder v. Phelps, the Court held that the First Amendment prevents legal sanction against those who protest with offensive slogans on public property within close proximity to a private event.  

The Westboro Baptist Church, a Kansas-based group, regularly protest near private funerals, often of deceased soldiers.  Members of the church protested near the funeral of Matthew Snyder, a marine who died in Iraq, displaying signs expressing offensive slogans, including anti-homosexual slurs and signs thanking God for the death of soldiers.  Snyder’ family sued the church and its leaders and received an award at trial of 5 million dollars for the church’s intentional infliction of emotional distress and invasion of privacy by intrusion into a secluded event..

The Supreme Court, by an 8-1 vote in a decision authored by Chief Justice Roberts, held that the verdict cannot stand. The Court explained that the offensive nature of the church’s speech did not dilute its members’ free speech rights.  It distinguished the church’s politically-oriented speech from “fighting words” designed to provoke imminent violence.  It also emphasized that the church members never strayed into private land.  “Simply put,” the Court wrote, “the church members had the right to be where they were.”

The family argued that its privacy rights were violated because they were a captive audience, as a practical matter unable to leave Snyder’s funeral to escape the church’s speech.  In dismissing this argument, the Court chose to focus on the context of the situation, noting that there was no evidence that the church members interfered with the funeral itself or that more than the tops of their signs could be seen from the funeral.  It is unclear how the Court would have viewed more intrusive speech.

The case highlights the tension which frequently arises between free expression and privacy.  Despite the Court’s implicit suggestion that greater intrusion into the funeral might have justified a different result, the overall tenor of the decision is consistent with U.S. law’s tendency to favor expression over privacy when the two conflict.  The court’s opinion took pains to note the special role of the First Amendment, explaining that “[g]iven that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment.”