Slander not protected by 1st Amendment

March 22, 2010|By Nathan Tucker

Do protesters have the constitutionally protected right to picket your fallen soldier's funeral and harass the proceedings? That is the question the Supreme Court will attempt to answer after it agreed to hear Snyder v. Phelps, a case in which the jury awarded a $5 million verdict against a Kansas pastor who has made headlines by protesting the funerals of fallen service members.

Previous court rulings may suggest that the answer is yes. But a careful examination of the wording of the Constitution - not to mention simple common sense - suggests otherwise.

Four years ago, Marine Lance Cpl. Matthew A. Snyder was killed while serving in Iraq, and his family planned for a private funeral at their church in Westminster. The Rev. Fred W. Phelps Sr., the pastor of Westboro Baptist Church in Topeka, Kan., and six of his family members decided to stage a protest at the funeral.

The Westboro Baptist Church believes that God hates America because of its tolerance of homosexuality. During this particular funeral protest, they carried signs stating "God Hates the USA," "America is doomed," "Semper fi fags" and "Thank God for dead soldiers."

The father of the fallen marine, Albert Snyder, sued the protesters for, among other things, intentional infliction of emotional distress. The jury awarded Mr. Snyder $5 million in damages, a verdict that was later overturned by the Fourth Circuit Court of Appeals on the grounds that the protesters' speech was protected by the First Amendment.

The First Amendment, however, provides that, "Congress shall make no law … abridging the freedom of speech." But there is no federal, state or local law at issue in this case. No one is arguing that the government tried to suppress Mr. Phelps' speech in any way.

This suit is entirely private in nature. It involved the offensive remarks made by one private individual against another private individual at a private event. In a type of personal injury suit, the aggrieved party sued the harasser in court for emotional damages.

How, then, does the First Amendment apply to this case at all? In cases such as New York Times v. Sullivan and Shelley v. Kraemer, the Supreme Court attempted to justify the First Amendment's reach into private suits by relying on the tenuous argument that, because the power of the state is used to enforce the verdict (through the court system), the government is suppressing the speech at issue.

In essence, the court reasons that, since the court system coercively transfers money from A to B because of A's speech, that it becomes a government restriction on speech. It is an ingenious but dangerous argument that brings every single court action under the Constitution's orbit. So long as there is a plausible political or social commentary behind one's actions, he is now immune from liability.

If this were the case, a minority resident would have no recourse against his prejudiced neighbors if they decided to demonstrate outside his property every night, day after day. Or a host could not evict a rowdy house guest who was becoming verbally abusive if that guest was doing so as a political commentary. And suits for slander and libel would be impossible.

And taking the court's precedent to its logical conclusion, no one could sue for monetary damages because, if awarded, the court would be depriving the defendant of private property without just compensation, in violation of the 5th Amendment. And no marriage could be dissolved, because the Contract Clause prohibits states from breaking contracts.

Since these results were clearly not intended by the Constitution, the court should use this case to overrule its past precedents and affirm that the mere application of neutral principles to enforce private suits does not constitute government action. The Constitution was intended to only govern public behavior - not private.

Nathan Tucker is a Davenport, Iowa, attorney and author of "We The People: The Only Cure to Judicial Activism." His e-mail is

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