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Funerals and the First Amendment

By now, you've probably seen the news about Albert Snyder's successful lawsuit against the Phelps family and the Westboro Baptist Church of Topeka, for invasion of privacy and infliction of emotional distress arising out of the church members' protests outside Snyder's marine son's funeral, bearing signs proclaiming slogans like "Thank God for Dead Soldiers." A Maryland federal jury awarded Snyder $11 million dollars, which the church has already announced that it will appeal to the Fourth Circuit.

So what's the appropriate outcome here? Do the church's First Amendment rights trump the family's rights to privacy on what is, most likely, the worst day of their lives? As sympathetic as the family's position may be, most legal experts believe that the First Amendment should, and will prevail, at least according to the experts quoted in this story from the Baltimore Sun. Ronald Collins, of the First Amendment Center in Washington noted that "I have spoken to a number of First Amendment attorneys today, and every one of them believes the case will be reversed and should be reversed."
Ann Althouse agrees at her blog. Still, at least one expert acknowledged that the families may also have a right to grieve in peace:

Rodney A. Smolla, dean of the Washington and Lee University School of Law in Lexington, Va., said Westboro members have a constitutional right to express their religious beliefs, but that case law is less definitive about the protections afforded to grieving families. "We don't have clarity of whether a funeral is a public event or private event," he said. "But we do know that the law has traditionally respected that grief and death and dying are deeply personal and deeply private."

For others, like Michael Dorf, the law is not as clearcut on either side. He writes:

So, were the First Amendment rights of the Westboro Baptists violated? I certainly want to say no. Perhaps we might treat what they did as a kind of trespass: During a funeral, the area around the funeral is in the possession of the mourners, and someone who comes into that area with the intent to provide deep offense and hurt commits a very serious trespass. Or whatever. Any doctrine that would protect "Thank God for Dead Soldiers" at a soldier's funeral would simply discredit the First Amendment itself.

Timothy Zick also doesn't find the traditional balancing approach between the First Amendment rights of the family on the on the one hand and the rights of the grieving family on the other satisfactory. So he focuses on the issue of public space. He explains:

Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented....The spaces we have left -- including all of the sidewalks and public thoroughfares -- are critical to the survival of any tangible public expressive culture. This is not an abstract concern....More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting. The abortion clinic precedents, which are now being cited in the funeral protest cases, tend to bear out that concern. No one likely would mourn the absence of the Westboro protesters. But we ought to be mindful of the loss of public space that may result from defeating (or seriously restricting) them. That, at least for me, is a more comfortable basis for granting even despicable speech like this some public breathing space...
Even the church's attorney, Jonathan Katz, doesn't agree with his clients' views. Interestingly, Katz issued a press release expressing his views about the case. He states:

This case arises from the picketing and related activities of Westboro Baptist Church (WBC) members concerning a soldier's funeral. I very much disagree with WBC's views, including its decision to picket soldiers' funerals. Of course, I believe strongly in responding to reviled speech with counterspeech, rather than seeking court intervention against such speech....This case stirs people's passions. I have heard from people taking issue with my defending WBC and its pastor in this case, and from others agreeing with my standing up for First Amendment rights, which I do again and again for people from across the political spectrum, believing that picking and choosing within the political spectrum is disingenuous to upholding the First Amendment. I went to law school idealistic about using my law degree for civil liberties, learned during law school that First Amendment rights are suppressed all the time, and feel heartened about being able to light a candle rather than to curse the darkness, through my First Amendment defense work.

I have no doubt that Katz can vigorously defend his clients' First Amendment rights - indeed, that he disagrees with their position and still accepted the case arguably makes him an even stronger advocate. To be sure, even though Fred Phelps, the church pastor and several members of his family are lawyers, they wouldn't make very effective counsel, as Phelps and several others have been disbarred or disciplined. At the same time, was it appropriate for Katz to express his personal position while the case is ongoing? Will it make his position more compelling - or less (or will it matter at all) at the Fourth Circuit.

As for me, I agree that this is a hard case, but I have to side,with the First Amendment. And sadly, this case is an example of what happens when we try to fight words with lawsuits, instead of simply with more words. According to this article, Phelps, who's originally from Kansas, lost his power to shock because his fliers, faxes and protests had become so routine. Sadly, this lawsuit gives Phelps the visibility that he craves.

Posted by Carolyn Elefant on November 5, 2007 at 11:58 AM | Permalink | Comments (0)

Comments

Rodney A. Smolla, dean of the Washington and Lee University School of Law in Lexington, Va., said Westboro members have a constitutional right to express their religious beliefs, but that case law is less definitive about the protections afforded to grieving families. "We don't have clarity of whether a funeral is a public event or private event," he said. "But we do know that the law has traditionally respected that grief and death and dying are deeply personal and deeply private."

For others, like Michael Dorf, the law is not as clearcut on either side. He writes:

So, were the First Amendment rights of the Westboro Baptists violated? I certainly want to say no. Perhaps we might treat what they did as a kind of trespass: During a funeral, the area around the funeral is in the possession of the mourners, and someone who comes into that area with the intent to provide deep offense and hurt commits a very serious trespass. Or whatever. Any doctrine that would protect "Thank God for Dead Soldiers" at a soldier's funeral would simply discredit the First Amendment itself.

Timothy Zick also doesn't find the traditional balancing approach between the First Amendment rights of the family on the on the one hand and the rights of the grieving family on the other satisfactory. So he focuses on the issue of public space. He explains:

Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented....The spaces we have left -- including all of the sidewalks and public thoroughfares -- are critical to the survival of any tangible public expressive culture. This is not an abstract concern....More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting. The abortion clinic precedents, which are now being cited in the funeral protest cases, tend to bear out that concern. No one likely would mourn the absence of the Westboro protesters. But we ought to be mindful of the loss of public space that may result from defeating (or seriously restricting) them. That, at least for me, is a more comfortable basis for granting even despicable speech like this some public breathing space...
Even the church's attorney, Jonathan Katz, doesn't agree with his clients' views. Interestingly, Katz issued a press release expressing his views about the case. He states:

This case arises from the picketing and related activities of Westboro Baptist Church (WBC) members concerning a soldier's funeral. I very much disagree with WBC's views, including its decision to picket soldiers' funerals. Of course, I believe strongly in responding to reviled speech with counterspeech, rather than seeking court intervention against such speech....This case stirs people's passions. I have heard from people taking issue with my defending WBC and its pastor in this case, and from others agreeing with my standing up for First Amendment rights, which I do again and again for people from across the political spectrum, believing that picking and choosing within the political spectrum is disingenuous to upholding the First Amendment. I went to law school idealistic about using my law degree for civil liberties, learned during law school that First Amendment rights are suppressed all the time, and feel heartened about being able to light a candle rather than to curse the darkness, through my First Amendment defense work.

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