Snyder v. Phelps

In Snyder v. Phelps, 562 U.S. 443, 451, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011), the Supreme Court addressed speech that, like the broadcast here, had the power to "inflict great pain." 562 U.S. at 461. Members of a church used the occasion of the funeral of a young Marine to picket with signs reflecting their "view that the United States is overly tolerant of sin and that God kills American soldiers as punishment." Id. at 447. Acknowledging that the signs were "particularly hurtful" to the mourners, id. at 456, the Court nevertheless held the First Amendment protected the church members from state tort claims because their speech was a matter of public concern, id. at 461. In Snyder, the Court observed that the principles determining when speech is of public concern "accord broad protection to speech to ensure that courts themselves do not become inadvertent censors." 562 U.S. at 452. The Court continued: Speech deals with matters of public concern when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," or when it "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Id. at 453. The Court explained that determining "whether speech is of public or private concern requires us to examine the 'content, form and context' of that speech, 'as revealed by the whole record.'" Id. In this analysis, a court must independently examine the entire record "to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'" Id.