Snyder vs. Phelps has been in the news quite a bit lately as the Supreme Court has granted certiorari in the case. The basic background is that members of the Westboro Baptist Church protested near the funeral of Lance Corporal Matthew Snyder, KIA in Iraq in 2006. WBC’s protests at or near such funerals are fairly well-known; they postulate that such combat deaths are the result of God’s wrath against the United States’ various positions on gays, abortion, religion, and a variety of other issues.
Albert Snyder sued WBC for defamation; intentional infliction of emotional distress; intrusion; and publication of private facts. The defamation and publication of private facts claims were dismissed, but the IIED and intrusion claims were heard at trial, and Snyder won a judgment of $10.9 million. That was reduced to $5 million by the trial judge, then vacated altogether by the Fourth Circuit Court of Appeals.
Since the SCOTUS decision to grant certiorari was announced, over half a dozen groups have sprung up on Facebook, with membership over 245,000; most advocate banning any protests by any group at funerals, especially those of military service members.
Let me state from the outset that I despise the things that WBC says and does. They don’t truly represent Christianity, and in my opinion illustrate the risks of a non-affiliated congregation. WBC claims to be Baptist, but they are an independent Baptist church, with no affiliation with any major denomination. They espouse a radical interpretation of the Bible, often engaging in proof-texting to make their points.
But.
I am finding it incredibly ironic that people are calling for the governmental restriction of speech at the funeral of someone who died defending the First Amendment, which controls governmental restriction of speech.
I served three years in the US Army in the service of my country. By doing so, I signaled my belief in certain ideals documented in the Declaration of Independence and the Constitution. One of those ideals is the right to express oneself freely, without government restriction. Yes, there are restrictions on that right. The most commonly quoted restriction is the one against falsely shouting “Fire” in a crowded theater. Doing so induces a panic and endangers patrons of the theater. Likewise, there is a “fighting words” doctrine:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Courtesy FreedomForum.org
Do WBC protests constitute fighting words?
If so, do protests similar to National Right to Life demonstrations at abortion clinics also constitute fighting words?
The answer to both questions has to be the same. Both events are extremely emotional for all parties involved. WBC uses posters with anti-gay epithets and accuses parents of raising their children for the devil; NRL uses posters of aborted fetuses and uses words & phrases like “murder” and “baby-killer.” How can one be considered fighting words, and the other not? I think Christians will not like the result if the answer to both questions is “yes,” but there are a lot of Christians who want to ban protests at funerals.
A common thought I’ve heard expressed is that people deserve the right to mourn with dignity, and to have their funerals without them being disrupted. But consider this: WBC was protesting 1,000 feet from the Snyder funeral. Can you honestly tell me that you can understand something that’s being said that far away? Most anti-abortion protesters are allowed much closer to abortion clinics; the limit there is usually 100 feet or less. That’s a big difference
Justice Oliver Wendell Holmes is credited with this utterance: “The right to swing my fist ends where the other man’s nose begins.” That’s generally held to mean that I can basically do what I want as long as it doesn’t infringe on your rights. How does someone protesting almost a quarter of a mile away infringe upon your rights? Further, do we really want to impose the irony I mentioned on anyone? Banning one kind of speech just because you don’t like it is a precipice that people don’t notice because of the beautiful view they see beyond it. But like any precipice, mortal danger awaits you if you slip.
Comments?
9 Comments
Much as I hate the WBC crowd and how they demean everything I believe in, I have to admit, you’re right on this one. Do I want to see those who have died honorably in service to this country mocked by these quacks? No. Holmes was right. I can’t stop them from spewing vitriol if I want to keep my right to say I abhor everything they stand for. Well-written, my friend.
I have to agree with you on this one Bob. While I hate everything that Phelps and his ilk stand for, there is no way that you can have a law to ban them from using their right to free speech. That being said, if I am ever at a military funeral, and these assholes show up, odds are I will be punching one of them in the face 🙂
First, I appreciate your service and respect your opinion, however I disagree with your conclusion.
Freedom of speech is a protection for the individual against those of power and influence. In short, an individual’s speech is protected when the object of the speech is a government official, or if such speech is against a “public personality” and not believably libelous (see Larry Flint vs. Falwell).
This case is not about Free Speech. It is about an individual, or group of individuals (WBC) “intentionally” using the tragedy, privacy, pain and dignity of an individual as a de-facto megaphone to amplify their message at the expense of a private citizen.
That is not protected speech. Had this speech taken place during the lives of those that wrote the Constitution and one of their sons was the victim of this intentional infliction of emotional distress in order to make their point, they would have either killed them where they stood or challenged them to a duel. It is not that I advocate violence, but wish to point out that speech that is personal, not public, and intended to do harm, it was not intended to be protected, nor should it be now.
While your words are “pretty”, I am in agreement with William from Sacramento…personal vitriol directed at individuals who are in the midst of burying their family or friend was not intended to be protected.
And Matt, if they were to show up at a funeral I attend, I’d probably not stop at punching them in the nose…IF they get by whatever volunteers have started gathering to protect the family and friends right to bury their loved one in peace.
I’d submit that what Deb and Matt suggest is far closer to what the Founders intended that what many people are trying to do. Of course, you run the risk of being arrested for assault. Even the lowest of the low have some rights.
William, the speech may be personal to some extent, and those parts are certainly actionable in my mind. The Phelps made statements they had no way of knowing the the veracity of. But in general, protesting the moral position of the nation, which is a large portion of what WBC engages in, that HAS to be protected speech.
I love the Patriot Riders and what they do. During my time in the funeral industry, I got to see PR groups work a couple of times, and I was impressed with the way they worked. I’d much rather see Patriot Rider-type solutions to situations like this.
I guess my biggest objection is the rush to legislate something, rather than overcome it in other ways. Legislation written in the heat of the moment tends to not be well-thought-out, and can create as many problems as it attempts to solve. The other problem is that legislators tend to be single-task-oriented. They’ll see a problem, write a bill, get that bill passed, and assume that bill solved that problem. They don’t revisit the issue to see if the people causing the problem have found a way to circumvent the bill. Throw in term limits, and the next person to hold that legislator’s seat may not have the same sense of duty or urgency about the issue. But the courts have some permanence, in that case law is always available. Maybe this is a time when one branch needs to sit back and let the other do all the work.
If the Klu Klux Klan march down the street with hoods and crosses, they are making a freedom of speech protected statement. We may not like it, but it is their right. If they show up at a black family’s funeral, they are intimidating and bullying, and it would be immediately squashed. The same applies to Snyder vs. Phelps. Individual families in mourning are not legitimate targets of free speech because it becomes bullying, and that is not what our free speech rights are about.
Interesting view, and I don’t necessarily disagree with it. But how far away would they have to be before it’s considered protected speech? In this particular case, WBC was 1/4 mile away.
How far away? How about Iraq or Afganistan,Iran,Somalia or maybe……