Last week, the Supreme Court heard oral arguments in the case Snyder v Phelps et al., a case in which the respondent, Fred Phelps, organized members of the Westboro Baptist Church to protest the 2006 funeral of Matthew Snyder, a US Marine killed in a Humvee accident in Iraq.
Protesters carried signs saying, “Don’t Pray for the USA,” “God Hates Fags,” “God Hates You,” “God Hates America,” “Semper Fi Fags,” “Thank God for Dead Soldiers,” “Priests Rape Boys.” The question the court will answer is, does the First Amendment’s free speech protection include hateful protests at a private funeral?
Phelps and his cohorts were found liable by a Baltimore jury of intentional infliction of emotional distress and invasion of privacy by intrusion upon seclusion. The 4th Circuit Court of Appeals overturned the lower courts findings by applying a legal theory that protects defamatory speech against public figures in the context of public issues.
The problem with the 4th circuit’s ruling is that under no reasonable circumstances could either Mathew Snyder nor his father (the petitioner) be considered a public figure.
The second problem was best articulated in the Amicus Brief signed by 42 US Senators, “as applied here, the [intentional infliction of emotional distress] and intrusion upon seclusion torts narrowly protect against willful efforts to invade a private grieving ceremony and to inflict harms on those involved.”
In order words, the Court of Appeals applied a legal theory designed to protect the right of people, in the course of discussing public issues, to verbally attack and insult public figures (such as Tea Party members calling President Obama Hitler) to a private citizen during a private funeral.
There are a lot of legal theories at work in this case but the deciding factor will likely be if the emotional distress of a grieving family and the privacy of burial ceremonies represent interests that the government (State and Federal) must protect.
To qualify as such an interest, there must be another protected right at stake. In this case, that right is privacy. Though not listed in the Constitution, the Supreme Court has consistently ruled that privacy is a fundamental human right protected by the 9th amendment.
Furthermore, Congress and the General Assembly of Maryland have passed a series of laws indicating the importance of a private and dignified funeral. Most notably, Congress passed the “Respect for America’s Fallen Heroes Act,“ which prohibits demonstrations on cemeteries controlled by the National Cemetery Administration for an hour before and after a funeral.
The Act also extends the same restrictions to funerals of any service member, including Snyder, held at a private cemetery.
With the intent of Congress and the State Legislature clearly leaning on the side of privacy, the Supreme Court’s decision is simplified: can a person’s right to privacy be denied (or curtailed) in the name of free speech?
My answer? No.
The reason is simple and can best be summed up by Justice Ginsburg’s question to Margie Phelps, “why should the First Amendment tolerate exploiting this bereaved family when you have so many other forums for . . . getting across your message?”
You may say whatever you want but you may not express your point by exploiting the rights of others, in this case, the right to a private funeral. Beyond striking a balance between free speech and privacy, such a ruling from the court would offer a good framework for interpreting future situations without endangering our right to free speech.
The danger in a case like this is to allow the anger over the content of what Phelps said to dictate how the law should be interpreted. That danger goes both ways.
Some suggest that because the content was so hateful, we must protect it but any argument predicated on what Phelps said fails to offer justice even if the argument ultimately protects what Phelps said.