Free Speech Vs. Freedom to Mourn in Peace: How Will the Supreme Court Rule?

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, www.godhatesfags.com. 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?

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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.