580 F.3d 206 (4th Cir. 2009), 08-1026, Snyder v. Phelps

Docket Nº:08-1026.
Citation:580 F.3d 206
Opinion Judge:KING, Circuit Judge:
Party Name:Albert SNYDER, Plaintiff-Appellee, v. Fred W. PHELPS, Sr.; Westboro Baptist Church, Incorporated; Rebekah A. Phelps-Davis; Shirley L. Phelps-Roper, Defendants-Appellants, and Jane Doe; John Doe, Jr., Defendants. Thomas Jefferson Center for the Protection of Free Expression; American Civil Liberties Union; American Civil Liberties Union of Maryland,
Attorney:Margie Jean Phelps, Topeka, Kansas, for Appellants. Sean E. Summers, Barley & Snyder, LLC, York, Pennsylvania, for Appellee. Craig T. Trebilcock, Shumaker Williams, PC, York, Pennsylvania, for Appellee. J. Joshua Wheeler, The Thomas Jefferson Center For The Protection Of Free Expression, Charlott...
Judge Panel:Before KING, SHEDD, and DUNCAN, Circuit Judges. Judgment reversed and bonds discharged by published opinion. KING, Judge wrote the opinion, in which DUNCAN, Judge joined. SHEDD, Judge wrote a separate opinion concurring in the judgment. SHEDD, Circuit Judge, concurring in the judgment:
Case Date:September 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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580 F.3d 206 (4th Cir. 2009)

Albert SNYDER, Plaintiff-Appellee,

v.

Fred W. PHELPS, Sr.; Westboro Baptist Church, Incorporated; Rebekah A. Phelps-Davis; Shirley L. Phelps-Roper, Defendants-Appellants,

and

Jane Doe; John Doe, Jr., Defendants.

Thomas Jefferson Center for the Protection of Free Expression; American Civil Liberties Union; American Civil Liberties Union of Maryland, Amici Supporting Appellants,

and

Jeffrey Ira Shulman, Amicus Supporting Appellee.

No. 08-1026.

United States Court of Appeals, Fourth Circuit.

September 24, 2009

Argued: Dec. 2, 2008.

Page 207

[Copyrighted Material Omitted]

Page 208

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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ARGUED:

Margie Jean Phelps, Topeka, Kansas, for Appellants.

Sean E. Summers, Barley & Snyder, LLC, York, Pennsylvania, for Appellee.

ON BRIEF:

Craig T. Trebilcock, Shumaker Williams, PC, York, Pennsylvania, for Appellee.

J. Joshua Wheeler, The Thomas Jefferson Center For The Protection Of Free Expression, Charlottesville, Virginia, for The Thomas Jefferson Center for the Protection of Free Expression, Amicus Supporting Appellants.

Joel Kleinman, David Schur, Ranga Sourirajan, Dickstein Shapiro, L.L.P., Washington, D.C., for American Civil Liberties Union and American Civil Liberties Union of Maryland; Steven R. Shapiro, American Civil Liberties Union Foundation, New York, New York, for American Civil Liberties Union; Deborah A. Jeon, ACLU Foundation of Maryland, Baltimore, Maryland, for American Civil Liberties Union of Maryland, Amici Supporting Appellants.

Jeffrey I. Shulman, Georgetown University Law Center, Washington, D.C., Amicus Supporting Appellee.

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Judgment reversed and bonds discharged by published opinion. KING, Judge wrote the opinion, in which DUNCAN, Judge joined. SHEDD, Judge wrote a separate opinion concurring in the judgment.

OPINION

KING, Circuit Judge:

In June 2006, Albert Snyder instituted this diversity action in the District of Maryland against Westboro Baptist Church, Incorporated (the " Church" ), and several of its members (collectively, the " Defendants" ). Snyder's lawsuit is predicated on two related events: a protest the Defendants conducted in Maryland near the funeral

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of Snyder's son Matthew (an enlisted Marine who tragically died in Iraq in March 2006), and a self-styled written " epic" (the " Epic" ) that the Defendants posted on the Internet several weeks after Matthew's funeral. Snyder's complaint alleged five state law tort claims, three of which are implicated in this appeal: invasion of privacy by intrusion upon seclusion, intentional infliction of emotional distress (" IIED" ), and civil conspiracy. After a trial in October 2007, the jury found the Defendants liable for $2.9 million in compensatory damages and a total of $8 million in punitive damages. Although the district court remitted the aggregate punitive award to $2.1 million, it otherwise denied the post-trial motions. See Snyder v. Phelps, 533 F.Supp.2d 567 (D.Md.2008) (the " Post-Trial Opinion" ). The Defendants have appealed, contending that the judgment contravenes the First Amendment of the Constitution. As explained below, we reverse on that basis.

I.

A.

The facts of this case as presented at trial are largely undisputed, and they are detailed in the district court's Post-Trial Opinion:

On March 3, 2006, Marine Lance Corporal Matthew A. Snyder was killed in Iraq in the line of duty. Shortly thereafter, two United States Marines came to the home of the Plaintiff, Albert Snyder, and told him that his son had died. As Matthew Snyder had lived in Westminster, Maryland, and graduated from Westminster High School, St. John's Catholic Church in Westminster was selected as the site for his funeral, which was scheduled for March 10, 2006. Obituary notices were placed in local newspapers providing notice of the time and location of the funeral.

Defendant Fred W. Phelps, Sr., founded Defendant Westboro Baptist Church, Inc. in Topeka, Kansas, in 1955. For fifty-two years, he has been the only pastor of the church, which has approximately sixty or seventy members, fifty of whom are his children, grandchildren, or in-laws. Among these family members are Defendants Shirley L. Phelps-Roper and Rebekah A. Phelps-Davis. There are approximately ten to twenty members of the church who are not related to Phelps by blood or marriage. According to the testimony of Defendants' expert, the members of this church practice a " fire and brimstone" fundamentalist religious faith. Among their religious beliefs is that God hates homosexuality and hates and punishes America for its tolerance of homosexuality, particularly in the United States military. Members of the church have increasingly picketed funerals to assert these beliefs. Defendants have also established a website identified as www.godhatesfags.com in order to publicize their religious viewpoint.

Defendants' testimony at trial established that their picketing efforts gained increased attention when they began to picket funerals of soldiers killed in recent years. Members of the Phelps family prepare signs at an on-site sign shop at their Kansas church to take with them in their travels. They also utilize an on-site production facility to produce videos displayed on the church's website.

Phelps testified that members of the Westboro Baptist Church learned of Lance Cpl. Snyder's funeral and issued a news release on March 8, 2006, announcing that members of the Phelps family intended to come to Westminster, Maryland, and picket the funeral. On March 10, 2006, Phelps, his daughters Phelps-Roper and Phelps-Davis, and four of his grandchildren arrived in

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Westminster, Maryland, to picket Matthew Snyder's funeral. None of the Defendants ever met any members of the Snyder family.

Defendants' rationale was quite simple. They traveled to Matthew Snyder's funeral in order to publicize their message of God's hatred of America for its tolerance of homosexuality. In Plaintiff's eyes, Defendants turned the funeral for his son into a " media circus for their benefit." By notifying police officials in advance, Defendants recognized that there would be a reaction in the community. They carried signs which expressed general messages such as " God Hates the USA," " America is doomed," " Pope in hell," and " Fag troops." The signs also carried more specific messages, to wit: " You're going to hell," " God hates you," " Semper fi fags," and " Thank God for dead soldiers." Phelps testified that it was Defendants' " duty" to deliver the message " whether they want to hear it or not." Lance Cpl. Snyder's funeral was thus utilized by Defendants as the vehicle for this message.

It was undisputed at trial that Defendants complied with local ordinances and police directions with respect to being a certain distance from the church. Furthermore, it was established at trial that Snyder did not actually see the signs until he saw a television program later that day with footage of the Phelps family at his son's funeral.

Defendants' utilization of Matthew Snyder's funeral to publicize their message continued after the actual funeral on March 10, 2006. After returning to Kansas, Phelps-Roper published an " epic" on the church's website, www.godhatesfags.com. In " The Burden of Marine Lance Cpl. Matthew Snyder," Phelps-Roper stated that Albert Snyder and his ex-wife " taught Matthew to defy his creator," " raised him for the devil," and " taught him that God was a liar." In the aftermath of his son's funeral, Snyder learned that there was reference to his son on the Internet after running a search on Google. Through the use of that search engine, he read Phelps-Roper's " epic" on the church's website.

Snyder v. Phelps, 533 F.Supp.2d 567, 571-72 (D.Md.2008) (internal citation omitted).1

B.

1.

When Albert Snyder filed his complaint in June 2006, he sued Fred W. Phelps, Sr., and the Church, later adding its members Shirley L. Phelps-Roper and Rebekah A. Phelps-Davis as defendants. The complaint alleged five state law tort claims: defamation, intrusion upon seclusion, publicity given to private life, IIED, and civil conspiracy. The Defendants moved for summary judgment on those claims, contending, inter alia, that their challenged words " constitute[ ] expressions of opinion, which are not actionable." J.A. 239.2 They asserted that their words " are clearly

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rhetorical, hypothetical, religious and laced with opinion," and that " it is impossible to prove or disprove these things, particularly given that doctrinal viewpoints drive the opinions." Id.

On October 15, 2007, the district court granted summary judgment to the Defendants on two of the five tort claims: defamation and publicity given to private life.3 The court awarded summary judgment on the defamation claim because the Defendants' speech was " essentially ... religious opinion" and " would not realistically tend to expose Snyder to public hatred or scorn." Snyder, 533 F.Supp.2d at 572-73. On the publicity given to private life claim, the court awarded summary judgment because the Defendants had not made public any private information. In so ruling, the court explained that the Defendants had published only information gleaned from a newspaper obituary and that such publication would not be highly offensive to a reasonable person, because the information was already a matter of public record.

In October 2007, the parties proceeded to trial on the remaining three claims of the complaint: intrusion upon seclusion, IIED, and civil conspiracy. At trial, Snyder testified, " recount[ing] fond...

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