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March 2011 Archives

Picketers at funeral had 1st Amendment protection, US Supreme Court rules

In a much-anticipated 8-1 decision, the U.S. Supreme Court ruled that the father of a Marine killed in the line of duty in Iraq cannot recover civil damages against Westboro Baptist Church and its pastor, Fred Phelps, over picketing conducted nearby to where the funeral and burial took place. In summary, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq.  Before the funeral and burial services, members of the Westboro Baptist Church, as they have done in numerous locations around the US, picketed nearby holding hateful signs with such slogans as: "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray  for the USA," "Thank  God for IEDs," "Thank  God for Dead Soldiers," "Pope in  Hell," "Priests Rape Boys," "God  Hates Fags," "You're Going to Hell," and "God Hates You."  As an aside, I would note that these picketers, by engaging in such conduct, say as much about their own morality as they say about what they think of America's national morality. The picketers were in an area designated by police, they were orderly and there was no shouting.  The plaintiff, Matthew Snyder's father, Albert Snyder, could only see the tops of the sign during the services and only learned of their full content later from television news reports.  Mr. Snyder, understandably, became very distraught that his son's funeral became the focal point for a group spewing hateful messages.  Mr. Snyder filed state law tort actions against the church, the pastor and members of the pastor's family for claims including intentional infliction of emotional distress.  A jury made a multi-million dollar award to Mr. Snyder. However, in the Supreme Court opinion in Snyder v. Phelps et al., written by Chief Justice John Roberts, the Court held that the defendants' actions were protected speech under the First Amendment and they could not be held liable.  The key points in the case that led the Court to come to this decision:
•The messages on the signs were, though crude and hateful in nature, on matters of public concern
•The defendant's messages were not targeted for the purpose of attacking the Snyder family - they had picketed with similar messages in numerous locations before.
•The picketers were orderly and did not engage in any conduct which interfered with the funeral services
•Because the messages were on matters of public concern, there is greater First Amendment protection than there would be if it was on purely private matters.
•The jury clearly had held the defendants liable because of the content of the signs - there would have been no liability if the signs had been of the nature of saying "God bless America" or the like.  Since the award was due to the content of the speech, it violated the First Amendment. As the Court noted, this conclusion does not necessarily mean that nothing can be done to prevent such picketing near funerals.  There is now a law in Maryland that prohibits picketing or demonstrations near funerals - there are similar laws in 43 states and there is a federal law as well.  However, this Maryland law had not yet been passed at the time of the Snyder funeral and the Court did not make a decision on whether that law is constitutionally valid.  As a general rule, restrictions on speech can be constitutional so long as the restrictions are based upon the timing, location or manner of speech and are neutral regarding content. For an interesting commentary on this decision and how funeral services can be protected with a temporary zone of privacy in a constitutional manner, read "Vicious Verbal Assault" by my friend, Professor Perry Dane, of Rutgers University Law School in "Law, Religion and Ethics."

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