Was father ‘captive’ to funeral protesters?

Friday, June 4, 2010

Albert Snyder insists he was part of a “captive audience” when he attended the funeral of his son Matthew, a Marine killed in the service of his country. Why? Because if he wanted to attend the funeral, he says, he couldn’t avoid the vile, reprehensible speech of Fred Phelps and other members of the Westboro Baptist Church — their protest made him in essence an emotional captive.

Next fall the U.S. Supreme Court will examine the case of Snyder v. Phelps to determine whether the First Amendment bars Snyder from suing for millions in damages under civil causes of action, such as intentional infliction of emotional distress and invasion of privacy.

In his brief, Snyder asserts that the captive-audience doctrine bolsters his privacy claim. The doctrine allows individuals under certain circumstances to be protected from unwelcome, offensive speech.

In Frisby v. Schultz (1988), the U.S. Supreme Court recognized the captive-audience doctrine in upholding a Wisconsin city ordinance barring picketing in front of residences. “The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech,” Justice Sandra Day O’Connor wrote in her majority opinion.

In other cases, the Court has rejected application of the captive-audience doctrine, ruling that individuals can avert their eyes and avoid objectionable speech.

Phelps’ home state of Kansas, 47 other states and the District Columbia — all except Maine and Virginia — also cite the doctrine in their brief: “Like the residents inside a home, funeral attendees are a captive audience” of the Phelps clan whom they refer to as “emotional terrorists.”

Phelps may argue that he and his fellow protesters complied with local ordinances and police orders about maintaining a certain distance from the funeral services. Phelps may also note that funeral-protest laws in different states already provide a buffer for those attending the funerals. Most state laws provide that funeral protesters, like the Westboro members, must stay 200 or 300 feet away from funeral processions.

The 4th U.S. Circuit Court of Appeals didn’t mention the captive-audience doctrine or cite the residential-privacy case of Frisby v. Schultz in its September 2009 decision when it overturned the jury’s verdict in favor of Albert Snyder.

Chances are the U.S. Supreme Court will at least address the captive-audience doctrine when it confronts Snyder v. Phelps.

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