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Funerals and Free Speech

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The Supreme Court heard argument on Wednesday in the case of Snyder v. Phelps. Fred Phelps is the founder and pastor of the Westboro Baptist Church, a fundamentalist Christian church that contends that God kills soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality. In recent years, the church has gained notoriety for staging protests at the funerals of soldiers in order to draw attention to its message.

Lance Corporal Matthew Snyder was a Marine who was killed on March 3, 2006, in Iraq. His body was returned to the United States, and his family held a funeral for him on March 10, 2006, in Westminster, Maryland. Phelps and members of his congregation picketed the funeral, displaying signs bearing virulently anti-gay slogans. One sign, drawing on LCpl. Snyder's status as a Marine, read "Semper Fi Fags." Another depicted two men engaged in anal intercourse. Phelps's message, apparently drawing on the biblical tale of Sodom, is that as long as the United States tolerates homosexuality Americans will suffer the same fate as the residents of Sodom. (There was no suggestion, by the way, that LCpl. Snyder was gay.)

On June 5, 2006, LCpl. Snyder's father filed a lawsuit against Phelps and the Westboro Baptist Church, alleging, among other things, that the defendants were liable for the intentional infliction of emotional distress. After trial, the jury awarded Mr. Snyder damages of $10.9 million. The trial judge reduced the damage award to $5 million. In 2008, a federal court of appeals held that Phelps's speech was protected by the First Amendment and therefore reversed the judgment below.

The central issue before the Supreme Court is whether the court of appeals was correct in ruling that Phelps' speech was protected by the First Amendment, which prohibits government from making any law "abridging the freedom of speech."

Mr. Snyder's position is straightforward: There is a time and a place for everything. Even if Phelps' offensive and odious speech is otherwise protected by the First Amendment, it is not constitutionally protected in the special circumstances of this case. A funeral is, after all, a solemn occasion at which mourners should be free to grieve in peace, without having to confront such odious and offensive messages. Thus, although Phelps may have a First Amendment right to display his odious and offensive signs on a public street or in a public park, he has no right to do so near a funeral.

As a matter of common sense, this may seem perfectly reasonable. As a matter of First Amendment law, however, it is flat-out wrong, as the court of appeals rightly held. Sometimes common sense misses the forest for the trees.

The central principle of the First Amendment is that government may not treat some ideas differently than others because people may find them odious or offensive. Had Phelps and the members of the Westboro Baptist Church carried signs praising the United States Marines, the Snyder family presumably would not have objected, and even if they had, no jury would have held Phelps liable for intentional infliction of emotional distress. This discrepancy is precisely what the First Amendment forbids.

If this were not so, then an anti-war demonstrator who burns a flag near a Veterans of Foreign Wars meeting, a protester who carries anti-sexual abuse placards in front of a Catholic Church, a civil rights marcher who accuses Southerners of being racist in Selma, Alabama, in the early 1960s, a Westboro Baptist Church member who shouts anti-gay-rights slogans near a rally for marriage equality, and a critic of Phelps who marches near the Westboro Baptist Church with signs attacking the church for being "un-Christian and un-American" could all be held liable for the intentional infliction of emotional distress, depending on the whims, biases, preferences and prejudices of twelve jurors.

This is not to say that government cannot address some of the problems posed by this case. But to do so, government must act neutrally. It cannot treat, and it cannot authorize jurors to treat, one idea as more offensive or more odious than another. It can, however, prohibit noise that might disrupt a funeral, gatherings that might block egress and ingress to a cemetery, and gatherings of people near a cemetery while a funeral is in process -- as long as the rule applies neutrally to all speakers, without regard to the message they wish to convey.

That is why the Supreme Court will hold that the jury verdict in this case violated the First Amendment.

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