Obscene, Disgusting, Offensive…and Constitutional

Snyder v. Phelps

Protected Speech?

The Supreme Court this week heard oral arguments in the case of Snyder v. Phelps.  Albert Snyder, the father of Lance Cpl. Matthew A. Snyder, who died in 2006 in Iraq, sued the Westboro Baptist Church, a fundamentalist Christian church that contends that God kills soldiers in Iraq and Afghanistan as punishment for America’stolerance of homosexuality and for the presence of gays in the U.S. military.

Westboro Baptist Church pastor and founder Fred Phelps and members of his congregation picketed Matthew’s funeral, holding signs expressing anti-gay, anti-American, and anti-Catholic slogans, including “God hates you” and “You’re going to hell.”

Mr. Snyder sued the Church and Pastor Phelps immediately after the funeral.  On October 31, 2007 ajury handed down a $10.9 million verdict against the defendants.  However, the Fourth Circuit issued an opinion reversing the judgment of the district court and vacating the jury award.  The appellate court found the Phelps’ speech (both website and picketing) protected by the First Amendment.

Oral arguments have been an interesting battle between absolute First Amendment rights versus privacy rights of the family.  From Time:

Inside the courtroom, it didn’t take long for the Justices to start picking apart the arguments. “We are talking about a funeral,” Albert Snyder’s lawyer Sean Summers began in his opening remarks. “If context is ever going to matter, it has to matter in the context of a funeral.” Then Justice Antonin Scalia interrupted, asking, “Are we just talking about a funeral? That’s one of the problems I have with the case.” Legal analysts had predicted that some of the facts surrounding the case would give Scalia trouble. They were spot-on. The Justice pointed out that Albert based his emotional-distress claim in part on offensive words that Westboro published about the Snyder family on the Internet about a month after the funeral. “What does that have to do with a funeral?” Scalia asked.

Justice Ruth Bader Ginsburg challenged Albert’s claim of invasion of privacy. She pointed out that even under Maryland’s funeral-picketing statute, which was passed after Matthew’s funeral, the Phelpses weren’t breaking any laws. They had checked with police on how far away from the church they should stand, and they left around the time the funeral began. Scalia followed up by noting that the Snyder family had rerouted the funeral procession to avoid seeing the protesters. “Is that the extent of the disruption?” Scalia asked incredulously. Summers responded by saying that since Westboro “took away the peaceful experience” of a private figure, the rerouting had invaded Albert’s privacy.

The legal arguments on both sides are what one would expect.  The Snyder family claims that the protests were an invasion of their privacy, and caused physical and mental harm.  The Phelps argue that the Snyder family were public figures because of the publicity of their son’s death (something that the Justices did not appear to accept).

Ultimately, this is a common sense issue.  Neither side has absolute rights.  The Snyder family has a legitimate right to privacy at the funeral, and the government has a right to set limits on where and when the protesters can protest.  However, they cannot absolutely limit the right of those protesters, despite how disgusting their message is.  This is precisely the type of message that the First Amendment protects.

After seeing the oral arguments, I believe SCOTUS will come to some reasonable compromise.  But as always, I am a constitutional absolutist; and insofar as we must protect the First Amendment, forever and always, Pastor Phelps and his disgusting group’s disgusting message must be protected, in the name of the greater good.