“America is Doomed”
“God Hates the USA”
“Thank God for 9/11”
“Pope in Hell”
“Fag Troops”
“Semper Fi Fags”
“Thank God for Dead Soldiers”
“Don't Pray for the USA”
“Thank God for IEDs”
“Priests Rape Boys”
“God Hates Fags”
“You're Going to Hell”
“God Hates You”
I don’t even know where to begin. The case of Snyder v. Phelps sickens me. I am embarrassed to say that these repulsive signs were held in the hands of fellow Americans. It is bad enough to say such terrible things in the first place but then put these signs at a funeral…a Marine’s funeral. Lance Cpl. Matthew Snyder died in a Humvee accident in Iraq in 2006.2 Matthew Snyder gave his life so the members of the Westboro Baptist Church of Topeka, Kansas could protest at his funeral. He died fighting for our country and instead of honoring him and thanking him for his dedication and service to our country, these people instead use such hateful words to disgrace his last hours on this earth.
As much as I hate it, I am still thankful for it. Of course, I wish people would choose to exercise their freedoms in a more positive manner, but that is America. And I love America. I am grateful for the First Amendment, even if it may protect vile speech like the Phelps’. The Westboro Baptist church is a small church headed by Reverend Fred Phelps and comprised of mainly the Reverend’s extended family. The congregation traveled to Westminster, Maryland to protest at Snyder’s funeral. The church travels around protesting military funerals because they believe the deaths are God’s way of punishing America for tolerating immoralities like homosexuality and abortion.3 I know, I think it is ludicrous too.
Albert Snyder, Matthew’s father, sued the Phelps’ and their church and was awarded a five million dollar settlement. The church appealed claiming First Amendment protection and won. The appellate court overturned the decision and set aside the five million dollar judgment. Snyder filed a writ of certiorari and Supreme Court hearings began October 13, 2010. A decision is supposed to be handed down this spring.1 In today’s post I would like to look at the First Amendment implications of the speech in question.
Yes it is shocking and disturbing but is it protected? Unfortunately, the appellate court decided so. And I have to agree. I am praying that the Supreme Court won’t agree, but I am not getting my hopes up. Mr. Snyder filed suit under state tort law and when plaintiffs file for emotional, mental or reputational injury damages, the First Amendment is applicable.4 Two issues arose here: public figure versus private figure and factual statements versus opinion.
It is clear that before this ordeal Mr. Snyder, nor his son, were public figures or public officials. Mr. Snyder falls under the category of a private individual who was thrust into the spotlight as a result of the circumstances. In Gertz v. Robert Welch Inc. the Court declined protection of speech that targeted private individuals.4
Despite this, there are still limitations on the types of speech that is protected in tort cases. Could a reasonable individual interpret the church’s signs to be strictly fact? If the statements are taken to be factual then they need to be objectively verifiable.4 Clearly, these are not facts that can be confirmed. The appellate court looked to Milkovich v. Lorain Journal Co. here. In that case, it was decided that the First Amendment will protect statements that cannot reasonably be interpreted as stating facts about individuals.4
From there, two further subcategories of speech that isn’t reasonably interpreted as factual are looked at: matters of public concern that can be debated and “rhetorical statements employing ‘loose, figurative, or hyperbolic language.’”4 Both are protected under the First Amendment.
Dunn and Bradstreet Inc. v. Greenmoss Builders Inc. set the precedent for the first subcategory. The issues in the Phelps’ signs all relate to issues of public concern, like homosexuality, the military, the War in Iraq, religion, etc. In order to allow uninhibited, wide-open and robust debate on issues of public concern, the First Amendment protects speech on such issues. I must say I do support this idea. I think debate is important and necessary to the evolution of our country. Without strong opinions and willingness to debate, it’s possible many essential civil rights would still be denied to a large portion of our population.
The next category, “rhetorical statements employing ‘loose, figurative, or hyperbolic language” I am not as convinced with. Again, it is clear that the Phelps’ signs did not state facts, but their exaggerated hyperbolic language was used to spark debate, or so it can be argued. Therefore, the First Amendment protects it.
Unfortunately, these horrible and utterly distasteful signs are protected constitutionally. However, I would like to take a closer look at a form of content-neutral regulations: time, place and manner restrictions in this case. Time, place and manner restrictions must pass intermediate scrutiny, and in Snyder v. Phelps, I think it does.
In order to pass intermediate scrutiny, there must be significant governmental interest.5 Protecting citizens in a time of bereavement is a legitimate concern that the government should have. In my opinion, citizens should have the right to bury their loved ones in peace. Even more so, military families, who already sacrifice so much, should especially be granted privacy after a death of a service member. I see this as a significant and acceptable governmental interest.
For precedent, I look to Frisby v. Schultz. The Supreme Court upheld a city ordinance that created a “buffer zone” for homes of doctors that performed abortions.5 In a 6-3 decision the Supreme Court upheld this ban due to the significant governmental interest, and the other parts of intermediate scrutiny: a narrowly tailored and content-neutral ban but also ample alternative means for communication.8
Like the doctors in the Frisby, families like the Snyders cannot advert their gaze from the hurtful signs or tune out the chants started from protesters. That is why restricting groups like the Westboro Baptist Church, and all other groups for that matter, from picketing funerals is a narrowly tailored ban that satisfies the government’s interest. It is not overly broad or burden more speech than necessary. The government wants to ensure peaceful and private burial services, which are sacred and sad occasions, for it’s citizens and I see banning protesting as a narrowly tailored and content-neutral ban. Even more so, there are countless ways to create debate about issues of public concern. The Phelps’ and their church could advertise their message with numerous other channels.
In the best interest of military families and civilians, I believe the local and state governments should create buffer zones for their residents. I realize this may be a difficult task to accomplish, so I think even before that happens Congress should create legislation banning protesting at military funerals especially. These men and women gave their life for our country and I firmly believe the least we can give back is ensuring families can properly bury their loved one. I wouldn’t want another family to have to go through what Mr. Snyder went through:
“I[had] one chance to bury my son and they took the dignity away from it. I cannot re-
bury my son. And for the rest of my life, I will remember what they did to me and it has
tarnished the memory of my son's last hour on earth.”4
As for the Phelps’ and the Westboro Baptist Church, they should be ashamed of themselves. They are a disgrace to Americans. I find it absolutely appalling that they would use a military funeral as an outlet for their political and social debates. I am also thoroughly sickened to see children holding those terrible signs. It is a sad day to see parents teaching their kids to hate instead of love. As a future lawyer and hopefully judge, I firmly stand by the constitutional rights that each and every one of us was born with. But as a citizen and a human being I believe we should use good judgment in exercising our rights. And let’s remember the men and women that risk their lives everyday for us to have those rights and please let’s give them the respect they deserve.
If the Phelps family and the members of the Westboro Baptist Church truly believe what they write on their signs, I have one piece of advice: LEAVE—AND TAKE YOUR SIGNS WITH YOU!!!
Sources:
4http://scholar.google.com/scholar_case?case=8866345823414548096&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Pictures:
