Funeral Protests, Privacy, and the Constitution: What is Next after Phelps?
Capital University - Law School
February 21, 2012
American University Law Review, Vol. 61, pp. 279-326, 2011
In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a funeral. In a relatively short opinion, the Court suggested that the legal issues were straightforward—the First Amendment precludes the imposition of tort damages when the comments at issue involve matters of public concern. Yet, the Court failed to explain whether those comments that were not of public concern were somehow immunized by those that were, and also failed to explain how the holding fits into the current defamation and privacy jurisprudence. The opinion raises more questions than it answers, and is sufficiently opaque that one cannot tell whether it marks a sea-change in the jurisprudence or, instead, is a straightforward application of it. This article explains both how little Phelps actually resolved and how the opinion nonetheless almost guarantees increased confusion in First Amendment jurisprudence.
Keywords: defamation, public concern, intentional infliction, privacy, captive audience
JEL Classification: k10
Date posted: February 21, 2012