Freedom and funerals: a quick take on Snyder v. Phelps

Monday, October 4, 2010

Editor's note: This article originally appeared on Yahoo News.

A potentially ground-breaking case now before the U.S. Supreme Court pits a father grieving the loss of his Marine son against the members of a small Kansas church that protest outside military funerals with signs reading “Thank God for Dead Soldiers” and “God Hates You.”

The actions of Pastor Fred Phelps and his Westboro Baptist Church are appalling to most Americans. How in the world can someone get away with shouting and displaying such venomous messages while a suffering family stands nearby, trying to cope with its loss in peace?

The natural reaction is “There ought to be a law,” so of course, there is. In fact, at last count, laws limiting protests near funerals have been passed in more than 40 states.

When Albert Snyder sued Phelps in Maryland for demonstrating outside his slain son Matthew Snyder’s funeral, he was awarded $10.9 million, later reduced by a federal judge to $5 million. On appeal, the 4th U.S. Circuit Court of Appeals threw out the verdict, concluding that the protest was protected under the free speech guarantees of the First Amendment.

Now we turn to the Supreme Court, which has the tough task in Snyder v. Phelps of navigating between freedom of speech and a family’s need for a peaceful funeral.

Five factors that may drive the decision:

Americans have the right to speak their minds, and there’s no requirement that they be particularly rational about it. The right to say what you believe, unfettered by the government, is a core American value. Even in this case, where the church’s anti-gay diatribes have little logical connection to the military, free speech is largely protected.

The government can’t control what we say, but it can limit where we say it. Government has the power to control the “time, place and manner” of free speech, as long as it doesn’t favor one point of view over another. That’s why protests at funerals can be kept 1,000 feet away, but it also means that a pro-military rally should be similarly restricted.

Hateful comments that refer to public issues are protected. As ugly as the church’s statements were, the appellate court concluded they were constitutionally protected as commentary about gays in the military and the child-abuse scandals in the Catholic Church.

The First Amendment protects more than speech. Freedom of religion looms large on both sides of this battle. The Westboro Baptist Church is acting on its faith, while the Snyder family believes it was deprived of its rights to worship and to assemble.

Forget the sticks and stones; words can indeed hurt you. People sue over words all the time. Often damages are awarded for libel and slander. But what about mean-spirited words that hurt someone’s feelings, but leaves their reputation intact?

In a groundbreaking 1988 case, the Supreme Court had to weigh whether evangelist Jerry Falwell could successfully sue Hustler magazine over a vicious parody. In the ultimate “your mama,” Hustler ran a fake ad saying that Falwell lost his virginity to his mother in an outhouse. In ruling for Hustler, the court noted that Falwell was a public figure and that the statements were too outrageous to be taken seriously by anyone. But what if the target of the ugly statements is a family at a funeral and not a public figure? The Supreme Court may be sympathetic.