I’m a First Amendment purist. I appreciate the late Justice Hugo Black’s reminder that “Congress shall pass no law means Congress shall pass NO LAW. It does not mean Congress shall pass no law unless Congress and the Supreme Court decide that, on balance, the government’s interest in passing the law is greater than the public’s interest in not having the law passed.”
This is one reason I was dubious about Elena Kagan’s likely role on the court. She did, as solicitor general, assert that whether the First Amendment applies depends on weighing the value of the speech in question. Chief Justice Roberts eloquently shot that argument down – there is no justice who doesn’t have his or her uses and his or her good days.
I also despise Fred Phelps, the pseudo-Baptist pseudo-minister whose entire church (mostly his extended family) pickets the funerals of veterans. (He says they died for a country that tolerates homosexuality). I would like to see the lawsuit filed against Phelps’s Westboro Baptist Church by Albert Snyder, the father of one such veteran, succeed – without doing violence to the First Amendment of course. Generally, I think the better way to deal with Phelps & Friends is via web sites like www.godhatesfigs.com and www.godhatesshrimp.com. The latter is my favorite. Laugh at the poor bastard, don’t take him seriously.
But, its hard to laugh at someone who shows up at your son’s funeral, with signs in the hands of your cute little twelve year old grand-daughter reading THANK GOD FOR DEAD SOLDIERS. And therein lies a valid way to distinguish what Phelps is doing from protected speech.
There is no question that, in general, Phelps and his rag-tag band of disciples have the right to display their intellectual and spiritual wares in the public square. But, when they target an INDIVIDUAL funeral, they are not simply advocating a matter of public (or divine) policy. They are intentionally inflicting emotional distress upon a targetted family. That is not a criminal offense, but it is subject to a civil action.
That civil action is what the 4th Circuit Court of Appeals denied to the Snyders. It would require no new law to allow the jury verdict against Phelps to stand. There is, for example, the precedent of Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Okla.1989).
Church leaders threatened to broadcast to the congregation the plaintiff’s sexual relations outside of marriage unless she repented. Guinn withdrew her membership in the church and hired an attorney who advised the church not to mention her name in church. They did anyway. Guinn brought suit for invasion of privacy and intentional infliction of emotional distress. The Oklahoma Supreme Court rejected the church’s First Amendment defense, finding that Guinn had effectively withdrawn from the church and was no longer subject to internal church discipline.
The important question is not how many meters from the church door Phelps was standing, nor whether he stood in direct line of sight. The important fact is that he deliberately targeted that particular funeral. If he had merely marched around downtown somewhere in the vicinity, and made a general statement about dead soldiers, he would probably be within his rights.
I hope the Supreme Court sees it that way – neither setting a precedent that would substantially restrict First Amendment law, nor deny the grieving family some form of redress for what happened to them. It is a delicate balance, but not an impossible one.