Short Essay on Snyder v. Phelps, Part III: The Plaintiffs’ (not the Phelpsians’) Religious Freedom Argument

For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) more passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the argument that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral; ; later this week, I’ll also blog on the libel private figure analogy, and on the invasion of privacy tort claim. If you’re interested in reading those before I post them separately, you can find them discussed here.

In this post, I want to discuss the plaintiffs’ religious freedom argument. Some commenters, including the plaintiffs in their petition for certiorari, defend the multi-million dollar verdict against the Phelpsians on the grounds that it protects the plaintiffs’ own freedom to conduct their own religious ritual — a funeral — without interference. And indeed a content-neutral law that banned, say, loud noises outside a funeral would be constitutional.

But nothing in the emotional distress tort limits liability to such situations. Nothing in these jury instructions instructed the jury to impose liability only if they found that the speech interfered with a religious ritual. And the picketing and the Web page in this case did not audibly or physically interrupt the funeral.

At most, the speech was implicitly critical of the religious service, and might have made the religious service less psychologically satisfying for those who saw the speech beforehand (which does not include the plaintiff, who first saw the picketing on television after the funeral). That is hardly a legally cognizable interference with plaintiffs’ religious freedom.

And if the speech here is treated as an interference with religious freedom, then the threshold for such interference would have to be set so low that a wide range of speech would likewise become restrictable. Publishing the Mohammed cartoons could lead to liability on the theory that they interfere with Muslims’ religious freedom because the memory of them disturbs Muslims’ prayers at mosque. The same could be said of harsh condemnation or mockery of Christianity, or for that matter of Scientology.

If the tendency of speech to simply creating emotional disturbance that affects the plaintiff’s mental state at a religious service suffices justifies restricting speech, half-century-old precedents protecting blasphemous and otherwise religiously offensive speech — cases such as Cantwell v. Connecticut, Kunz v. New York, and Joseph Burstyn, Inc. v. Wilson — would have to be overturned. And religious ideologies would acquire striking, and improper, new protection from criticism and ridicule.

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