Legal Briefing: Are Hateful Funeral Protests Protected Speech?

A daily look at legal news and the business of law:

Does the First Amendment Allow a Homosexual-Hating Church to Picket Soldiers' Funerals?

The members of Westboro Baptist Church of Topeka, Kan., hate homosexual people so much -- or rather, believe God hates homosexual people so much -- that they believe God is killing U.S. soldiers in Iraq and Afghanistan because America tolerates gay people. For years, church members have held protests at the private funerals of soldiers, further grieving family members by holding signs emblazoned with slogans such as "God Hates You," "Thank God for Dead Soldiers", and, at the funeral for Marine Lance Cpl. Matthew A. Snyder which is central to the current Supreme Court case, "Matt in hell."

Lance Cpl. Snyder was buried four years ago in a private, Christian ceremony at St. John's Catholic Church in Westminster, Md. Although approximately 40 states have responded to the protests by passing laws to regulate funeral demonstrations, no such law prohibited the church's protest of Snyder's funeral. The Snyder family sued the Westboro Baptist Church for intentionally inflicting emotional distress on them, and won a $5 million verdict at trial. However, the church won on appeal by arguing the protest was protected free speech, citing a Supreme Court case lost by the Rev. Jerry Falwell.

Falwell sued Hustler Magazine for the intentional infliction of emotional distress, and lost on the grounds that the Hustler Magazine parody at issue in the case was protected speech about a public figure. The Snyder family contends this case is different, because the protesters' speech is private speech against private individuals, and if the First Amendment protects such speech, victimized individuals have no recourse. Alternatively, if the First Amendment does protect private speech versus private individuals generally, the Snyder family argues that funeral attendees are a special, captive audience, and as such, deserve extra protection.

Regardless of how the Court ultimately decides the case, the cruelty of these church members is just mind-blowing.

Congress Constitutionally Limited the Free Speech of Bankruptcy Attorneys

Under the 2005 law that overhauled bankruptcy laws, Congress prohibited debt relief agencies from advising clients to go deeper into debt while intending to file for bankruptcy. In addition, such agencies had to make specific disclosures in their advertising. A law firm that assists people in filing bankruptcy sued, arguing that bankruptcy attorneys were not "debt relief agencies" under the law, and if they were, the limitations on advice and advertising requirements were unconstitutional restrictions on free speech.

Justice Sonia Sotomayor's opinion made short work of the bankruptcy attorneys' claims. The plain language of the statute included attorneys in the debt relief agency definition, the disclosure requirements were not problematic, and the only sensible reading of the statute's limitation on speech was a narrow, straightforward, anti-fraud one: Attorneys are barred from advising their clients to rack up more debt knowing that they plan to discharge that debt in bankruptcy. For example, a bankruptcy attorney can't advise a client to go on one final shopping spree. Other discussions of debt, in the context of planning for bankruptcy, are not barred by the statute. Sotomayor was joined in her opinion by six of her colleagues; the other two, Justices Antonin Scalia and Clarence Thomas, concurred in part, and concurred in the judgment.

In Other Supreme Court News...

Americans want the Supreme Court on camera, even if we're not sure we'll actually watch it. And in the Roberts era, more dissents than ever are being read from the bench (an act which the Miss Manners of Supreme Court etiquette would explain is as close to insulting each other as justices can get.)

And in the Business of Law...

Weil, Gotschal & Manges had a flat 2009, with a small decline in revenue per lawyer and a small increase in profits per partner. While many firms would be happy with such results, at Weil, it means that parts of the firm must be severely struggling. After all, its bankruptcy practice has been thriving, billing some $300,000 a day for its work on the Lehman bankruptcy alone.