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Tipping the Scales: Snyder v. Phelps and the Balance Struggle

Posted: 6 Mar 2011  

Aamir Mahboob

University of Toledo College of Law

Date Written: March 2, 2011


Beginning as early as 1791, First Amendment speech rights have been enshrined as integral foundational principles in America. In recognition of the deeply held American commitment to free speech, the Supreme Court has zealously protected free speech, even in cases where the speech was provocative or even downright offensive. However, over the years, the Supreme Court has also recognized that the right to free speech is not unfettered.

Over time, the Supreme Court has carved out several categories of speech that are either unprotected or less protected, including speech inciting illegal activity, fighting words, and obscenity. Despite using relatively broad strokes at times in order to illustrate the full spectrum of free speech rights, the Court often runs into problematic scenarios where in free speech rights clash with other important interests or values.

The Westboro Baptist Church (“Westboro”), led by Fred W. Phelps Sr., challenges the boundaries of free speech rights, picketing at the funerals of military personnel primarily in condemnation of American tolerance of homosexuality. The conflict over funeral picketing brings to the forefront a clash between free speech rights and a family’s ability to pay their last respects, grieving for the departed. Understandably the families and friends of military personnel vehemently oppose Phelps’ protests, and consequently a flurry of both state and federal statutes spawned attempting to restrict funeral picketing. However, these laws do not provide adequate protection for mourners from the outlandish tactics of Westboro.

Recently, in Snyder v. Phelps, a federal district court held Phelps and the Westboro Baptist Church liable for a number of torts relating to disruption of a funeral. On appeal, the Fourth Circuit reversed, finding Phelps’ speech “distasteful and repugnant,” but nevertheless protected by the First Amendment. Recognizing the conflict percolating in the lower courts regarding the constitutionality of legislation regulating funeral picketing, the Supreme Court granted certiorari.

Part II of this Comment outlines the factual background and district court proceedings pertaining to present litigation between Albert Snyder and the Westboro Baptist Church. Part III of First Amendment jurisprudence. Part III discusses the Westboro Baptist Church’s beginnings and subsequent clashes with both federal and state legislatures. Part IV chronicles Westboro’s appeal and the Fourth Circuit’s subsequent reversal of a district court ruling in favor of Albert Snyder. Part V analyzes Supreme Court precedent providing protections to speech in the face of tort liability. Part VI explores some of the possible avenues the Supreme Court may travel down in establishing a new rule to protect mourners. Part VII offers a prediction regarding the Court’s upcoming ruling. Finally, this Comment concludes by reflecting upon the interests at stake, and which way the scales of justice – at least based on the Supreme Court’s precedent – will tip.

Keywords: Snyder, Phelps, Funeral Protest, Westboro, Baptist, Church, Free Speech, Supreme Court

Suggested Citation

Mahboob, Aamir, Tipping the Scales: Snyder v. Phelps and the Balance Struggle (March 2, 2011). Available at SSRN:

Aamir Mahboob (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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