Free Speech Vs. Freedom to Mourn: Supreme Court Sometimes America's dearest constitutional principles are defended by the ugliest people. For example, the seminal Miranda case that gave us the famous warnings protecting our constitutional right against self-incrimination, involved Ernesto Miranda, a rapist, kidnapper and robber.

In a case the Supreme Court heard Wednesday, Snyder v. Phelps, the underlying facts are ugly: The Westboro Baptist Church holds anti-gay protests at the funerals of fallen U.S. soldiers, sporting signs with such charming messages as "Don't Pray for the USA," "God Hates Fags," "God Hates You," "God Hates America," "Semper Fi Fags," and "Thank God for Dead Soldiers."

The church believes the deaths of those soldiers are justified and God's will because America is such a sinful nation: Its particular obsession is homosexuality, reflected by its web address, Nonetheless, the issue in the case is an American value both old and proud: freedom of speech. And like Ernesto Miranda, I think the church -- at least at as regards this lawsuit -- is defending everybody's free speech rights.

What the Protesters Didn't Do: Disrupt a Funeral

Matthew Snyder, a U.S. Marine killed in Iraq, was honored at a funeral in Maryland on March 10, 2006. The church, under its leader, Pastor Fred Phelps, protested in compliance with local law, keeping 1,000 feet away and obeying police instructions. Indeed, Albert Snyder, the Marine's father, who later sued the church, was unaware of the protest until he saw news reports. Upset by the protest, and in particular the continuation of it on the church's website, Albert Snyder sued for intentional infliction of emotional distress, and won $11 million in compensatory and punitive damages. The U.S. Circuit Court of Appeals for the Fourth Circuit overturned the verdict on free speech grounds, leading to this week's arguments before the Supreme Court: Does the First Amendment protect the protesters such that the Marine's father can't sue for damages?

As SCOTUSBlog's Lyle Dennison lays out in great detail, the case hinges on which side's frame the Court agrees with: Was this private speech against private people in captive setting (the funeral), or was it speech against a "limited public figure" -- Snyder had done media interviews before the funeral, speaking about his son -- about matters of public concern conducted in a public place?

These are vital distinctions: Public figures have less protection against hateful speech; matters of public concern have fewer boundaries on how they are discussed; and public places are where speech is most protected. When the Fourth Circuit found the speech constitutional, however, it focused on the speech itself, finding it hyperbolic and not stating any actual facts, merely opinion and belief. Since no false facts were stated, the speech was protected. It's hard to convincingly dispute the Circuit's analysis, but that's not Snyder's only hope.

Say What You Will -- But Not There, and Not Then

In general, the right to free speech is not unlimited: Even constitutionally protected speech can be regulated by time, manner and place restrictions, so long as those restrictions don't vary based on what the speaker is saying and the restrictions don't suppress more speech than necessary. Indeed, the law that kept the Phelps protesters 1,000 feet from the funeral is precisely the type of regulation of speech that has been allowed.

By bringing his suit, Snyder implicitly argued that law insufficiently regulated the protesters' speech. Before the Court now, he makes that argument explicitly, asserting that the funeral made him and the other mourners a captive audience deserving of special protection from even otherwise constitutionally protected speech. It's an argument to which many are sympathetic: Most people understand the inherent sacredness of funerals and want them to be undisturbed. And according to many court-watching commentators, the funeral angle seems to be driving the justices to seek a way to prohibit what Westboro Baptist does without wreaking too much havoc on the freedom of speech.

Given that the protest was obeying a time, manner and place restriction, a restriction effective enough that the funeral wasn't disturbed -- note again, Snyder didn't know of the protest until afterward -- I'm afraid this isn't the case to put the church's behavior outside the First Amendment. I'm horrified by what Phelps and his followers do. I've lost loved ones, and as a parent, cannot even imagine burying my child. If there had been no law keeping the protesters from disrupting the funeral, and if they had brought their hate-mongering right in among the mourners, then I'd want this bereaved father to be able to sue for damages and win so much that their church was bankrupted into perpetuity, shutting them up for good. But that's not the case here.

And perhaps that's what the Court will do: Uphold the Fourth Circuit, finding the speech constitutional on its face, but in doing so define a new test that would chart another extremely narrow circumstance under which constitutionally protected speech can be trumped by the right to privacy. In this way, the Court could create a bubble around mourning families, ensuring that at their most vulnerable moment -- the funeral itself -- hate speakers can't hurt them. It's a not unlikely outcome -- after all, the Court has drawn almost precisely that boundary before.

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Today, the ten commandments would be welcomed by the world (if everyone would abide by them).

However, I'll give you just one quote from our savior Jesus Christ...


Any so called "Christian" who stages a protest at ANY funeral has not heeded the command of Jesus, The Christ, Our Savior. Want to be called Christians??? Be Christ like in your mind, body and actions! Go home! You are not "without sin" so don't cast the first (or any other) stone.

March 02 2011 at 8:45 PM Report abuse rate up rate down Reply

I understand free speech but what they do is disgusting. Personally, if I anticipated them bothering me or someone I loved, I'd get the largest speaker system possible and play "The Battle Hymn of the Republic", etc., for their listening pleasure. A few scripture verses would be placed appropriately (screening) for their viewing also. Fight fire with fire! Their 15 minutes of fame needs to be over!!!

October 11 2010 at 8:49 AM Report abuse rate up rate down Reply

First of all, true religion would never do this to someone. Secondly, if the Supreme Court can't protect the rights of those who haved died then why should others place their lives at risk? When will we say enough is enough? You have the right to live in freedom because someone else died for you to hold that freedom. You don't have the right to mock that person. My husband served in the military for 14 years, and had to get out because of an injury. If you can't respect and protect the honor of our men and women...why do you think they should defend you?

October 11 2010 at 2:21 AM Report abuse rate up rate down Reply

someone just get rid of the phelps family once and for all!! HELLO TALLYBAN?? AL QUIDA??

October 10 2010 at 8:01 PM Report abuse +1 rate up rate down Reply

I hear people saying, "If they hate their country so much, they should just move." The reason why they DON'T move is because no other developed country on this planet would tolerate their absurd behavior. Our freedom of speech is unmatched by any other country in the world, and with that comes a responsibility. Unfortunately, many people in this country are too moronic and hateful to deserve this right.

October 10 2010 at 1:27 PM Report abuse +2 rate up rate down Reply

I get it about the 1st amendment rights, I really do. But to 99% of the decent people on the planet, let alone the U.S.A. these despicable bible thumping gargoyles must be stopped. A way must be found & hopefully the Supreme Court is up to the task. The hypocrisy displayed be these reptiles is beyond belief. This is the American Taliban in essence. These people are worthy to be in those coffins they are so disrespectful to.

October 10 2010 at 1:13 PM Report abuse +1 rate up rate down Reply

If they hate America that much they should be put on a raft and made to float in the Dead Sea forever.

October 10 2010 at 11:46 AM Report abuse +2 rate up rate down Reply

every one needs to go to there church and protest .... them.... every day and at there houses every night

October 10 2010 at 9:56 AM Report abuse +2 rate up rate down Reply
Mike and Phyliss

I hope that the Supreme Court rules against the Westover Baptist Church. Protesting at any funeral is unacceptable. Period. I am tired of rude, crude behavior being allowed because of "free speech". What happened to civility in this country? I can tell where it went. With all of the new technology out there and everyone texting everyone and not actually communicating in person, people are being just plain cruel because they do not have to deal with the face to face conflict. As other living things evolve, we are going to evolve with no voice box or mouth since people no longer speak to each other. This ranks right up there with cyberbullying and kids killing themselves because of it. We need to get back to behaving like civilized people. No wonder the rest of the world hates the US. We have become a country of "Do unto others BEFORE they do it to you." If this is allowed, why not say murder is free speech? I am surprised that has not been used as a defense yet. I do hope the Supreme Court rules that there is a limit to "free speech" like when it causes another person distress.

October 10 2010 at 8:05 AM Report abuse +5 rate up rate down Reply
1 reply to Mike and Phyliss's comment

You hit the nail on the head. Nobody should be allowed to protest at anybodies funeral, period. Funerals should be place for the freinds and family of the deceased to say their last goodbyes in peace. These cretins should show some respect. It's hard to understand why these imbeciles would involve their kids in activities that cause most of the country to hate them.

October 10 2010 at 7:42 PM Report abuse +1 rate up rate down Reply

Look people this issue like any other can be spun however one like's, is it free speech? does the first amendment rule supreme? speaking of which how WILL the court rule? I know it is in very short supply but let's use just a little common-sense here what do ya say? What the member's of this church are doing, what the so-called "Pastor" and his so-called "Baptist" follower's are doing is wrong on so many level's I don't hardly know where to start. Life people really is not all that complicated when you get down to it so to speak, right is right and wrong is wrong and WE ALL KNOW THAT some just choose to ignore or pretend otherwise, should I find myself at a service and a "protest" take's place as an old wise man once said " we are going to have more hell than just a little-bit over it let me tell you " I don't pretend to know what "God" thinks about ANYTHING! and those that do would do well to remember they don't walk on water any better than the rest of us, being that we ALL GO SPLASH.

October 10 2010 at 3:07 AM Report abuse +3 rate up rate down Reply