Snyder v. Phelps Presented to Supreme Court

Tomorrow, on October 6th 2010, the case "Snyder vs. Phelps" will be presented in the Supreme Court, and it will be about the freedom of speech. I just wanted to see what some of your opinions were on this issue. Hate crime or First Amendment right?

Phelps’ Vile Words Test First Amendment

YouTube Snyder v. Phelps

 

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Let's start protesting at their funerals claiming that "God hates people that hate" and that God kills soldiers in Iraq for hating people and allowing hate in the U.S.A.

No need for all this lawsuit stuff. Just drive 'em crazy and they'll shut up.

 

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Strong majority in Phelps' favor

I suppose this decision will hinge, in no small part, on how the Court views funerals. Still, though, I'm hard pressed to understand how the Supreme Court could overturn the appeal. Free speech means a lot of things. The right to be an asshole, for instance. And the right to be offended by an asshole.

I expect a solid majority—possibly unanimous—in favor of Phelps. Still, though, it will be interesting to read any dissent to such an outcome. I would hope that, if there is a dissent against a ruling in Phelps' favor, it will at least be a good one. I'm very interested to find out if there is a good argument to be had against offensive speech, at least insofar as I'd like to know what society is up against.

But it's nearly unimaginable that the Supreme Court will rule in Snyder's favor.

The only thing I can think of is the extension of some notion of how courts view domestic verbal abuse, but, barring the establishment of a threat, I don't see how that would work.

 

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Well the First Amendment prohibits the Gov from making any laws that prohibit free speech, and if you are allowed to successfully sue someone for excercising their right to protest for $5 million using a law created by the Gov, then it would appear that the Gov has crossed the line, the speech might not be technically prohibited by the Gov, but the threat of a $5 million dollar fine is essentially the same thing.

Arthur

 

It's not so simple as that

And yet the government does, and the Court upholds. The question is whether one can find a way to make the Phelps plague fit one of the standing restrictions (most likely not) or perhaps convince the Court to establish a new boundary (most hopefully not).

 

I believe its harasment and inhumane treatment of people. I hate the military, and mililtary action but for someone to protest stateing "Thank God for dead soldiers" at a funeral is harrasment. I am all for protests, I am all for the right to offend, but harasment is a different story.

 

It sounds like harassment to me too. A sort of reverse religious harassment, or even religious terrorism.

 

It's a hard argument to make

Harassment is a problematic standard. It's not that I disagree that such a protest at least has the appearance of harassment, but the main challenge along that route is defining the conduct as such according to legal standards and then building the constitutional and judicial history that would support any legal action against such speech.

It's not something I would necessarily do, but I reserve to myself the right to carry a Matthew 25.40 ("Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.") sign outside the funeral of, say, a cardinal who molested or abetted the abuse of children. Some might find that insulting and offensive. And, in the end, it is my interpretation of the passage that would make it applicable. That I believe Reverend Phelps and his flock will be better off after their death if there is no God to judge them and determine their afterlife is just how I see it. And if these people really do believe that God murders an American soldier through the instrument of some half-wit fanatic with an IED, simply because enough of my neighbors and I don't think it worth killing, or even ostracizing all the Sodomites, that's their interpretation of the Bible.

That is, we are witness to an assertion of what these people apparently believe is the truth.

Be there a Judge in Heaven, let them answer unto Him. Be there oblivion, I don't see how it really matters. But in the here and now, I don't see how our First Amendment can be construed to exclude this particular most bilious of speech. And given the breadth of diversity, I'm not sure I would want it to.

The Reverend Fred Phelps and his followers present a sorry caricature of Christianity. Their gospel of hate and their deliberately cruel and exploitative tactics merit universal condemnation. Accordingly, the Phelpses' antics provide an understandable temptation to shave First Amendment doctrines in the interest of punishing extraordinarily distasteful speakers.

(Sekulow)​

The amicus brief offered by the American Center for Law and Justice—an arm of Rev. Pat Robertson's organization—makes for compelling reading. Mr. Sekulow is hardly on my list of favorite lawyers, but he does well to remind that, "The main danger with this case is that ugly facts may invite bad law."
____________________

Notes:

Sekulow, Jay A. "Amicus Brief of the American Center for Law and Justice in Support of Neither Party". Snyder v. Phelps et al. Supreme Court of the United States of America. June 1, 2010. ABAnet.org. October 5, 2010. http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-751_NeutralAmCuACLJ.pdf

 

What I wonder is if there are not a number of justices interested in overturning the decision, why did they even bother to take the case? Clearly at least some of them feel there is an issue that needs to be settled here.

Isn't a funeral a private function generally attended only by friends and family? Why shouldn't the right to privacy trump the right of assholes to protest at that particular venue?

I expect a ruling modeled on the rules regarding protesting at abortion clinics

Even the vile invective posted on the Westboro website (“The Burden of Marine Lance Cpl. Matthew A. Snyder.” ) is on shaky legal ground because, unlike the famous case involving Larry Flynt and Jerry Falwell; Cpl. Snyder is not a public figure.

 

I think they do have a right to protest at funerals, or at least near them. I just wonder why these funerals aren't held on private property, that way the protestors would remain out of sight.

 

The Long and Winding Road

Sekulow's brief for the ACLJ suggests the District Court applied the law wrongly; it is at least possible that the Supreme Court will agree with that and remand according to recommendation. Obviously, I haven't read all the briefs; I can't say with any certainty, but—

—it seems the question of privacy or protest will be front and center. One thing I'm unclear on right now is the difference between public and private land insofar as how the boundaries are drawn. There is a compelling question, it seems, regarding a broad swath of laws passed at federal and state levels. SCOTUSblog explains:

Among amici filings, those of three advocacy organizations do not choose up sides, but wound up making arguments that tended to align them with one side or the other: one argues that there should be more privacy protection for the ritual of burying the dead, one argues for a new trial in the case because of flawed jury instructions, one argues that the Snyder petition does not really pose the issues it raises. One suggestion is that, perhaps, the case should be dismissed as one that should never have been granted review.

Snyder’s appeal draws fervent, outright support — most conspicuously from 42 members of the U.S. Senate, speaking in favor of the laws passed by Congress and 46 states to limit picketing at funerals and calling for a full Supreme Court embrace of the broad notion that protesters like the Westboro Baptists should not be “free to hijack [this] private funeral as a vehicle for expression of their own hate.” and 48 states and Washington, D.C., similarly defending state laws against what they call “psychological terrorism that targets grieving families.” Also on that side, among others, are the leading veterans’ organizations, the American Legion and the Veterans of Foreign Wars ....

.... The Court has been served up in this case with a set of mutually exclusive choices — deciding how to interpret the facts of what went on in Westminster, Md., in March 2006, deciding on the meaning and reach of its prior First Amendment rulings on state torts and on media vs. non-media defendants in such lawsuits, on the nature of the Westboro Baptists’ expression and its link — or lack of it — to public questions, on the legal “personality” that Matthew’s father assumed at the time of the picketing and since, and on the definition and scope of “captive audience” doctrine.

It seems clear that, to rule definitively for either side, the Court would have to make most if not all of those choices in one direction. Each side’s argument depends upon its explicitly tailored view of not only the facts but what those facts mean to the legal concepts. For all of the effort, on each side, to make the case fit neatly into already established First Amendment norms, this case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.​

But as a matter of principle, I'm unsure about the merit of the question you ask: "Why shouldn't the right to privacy trump the right of assholes to protest at that particular venue?" Twenty-five years ago, the quesiton was, "Why shouldn't the right to privacy trump the right of assholes to play offensive music?"

Just as we mostly despise the Klan, or neo-Nazi organizations, that celebrate their hatred with parades, how do we divide the public and private spheres? Does the fact of a public street mean a protest is public? Or does the fact that the demonstration is audible and visible from a private residence along said street make it an invasion of privacy? If Phelps' protesters are on a public street, does that make it a public event? If the funeral is on private land, does the fact of a protest's perceptibility make it an invasion of privacy? And what if the cemetery is public land, does that change the equation significantly? There is also a difficult question of what constitutes a "captive audience"—should one feel obliged to skip a family funeral in order to avoid exposure to such crass exploitation?

Certainly, there are already sparks flying in this one, but it's going to be a difficult climb to use the law to put Phelps and his minions in their place.

The Court does have a possible out. Sekulow and the ACLJ recommend that—

The decision below should be vacated and the case remanded for retrial with proper instructions confining the jury to the determination of facts, not law, and limiting any potential liability to matters not protected by the First Amendment.​

—and SCOTUSblog suggests—

... in a newly honed argument, the brief sought to put distance between the Westboro Baptists and any matters of public concern that they (and the Fourth Circuit) insisted were the subject matter of their protests. The Phelps family, it said, only started protesting military funerals after they had been accosted by Marines, and thus their protest was nothing more than retaliation for a “prior, unrelated physical assault.”

Moreover, in a variation on that point, the Snyder brief said that Snyder himself has no connection to any of the “matters of public concern” that were claimed to be at issue in the protests. He was a private target of a private grievance only, according to the brief.​

Thus, the Supreme Court could possibly remand to the Fourth District with instructions to consider its findings of fact. Indeed, if the Supreme Court wishes to hold Phelps and Westboro in the wrong without eviscerating the First Amendment, they might find this their safest and most useful recourse.
____________________

Notes:

Denniston, Lyle. "Argument preview: Protest vs. privacy". SCOTUSblog. October 4, 2010. SCOTUSblog.com. October 5, 2010. http://www.scotusblog.com/?p=105700

Sekulow, Jay A. "Amicus Brief of the American Center for Law and Justice in Support of Neither Party". Snyder v. Phelps et al. Supreme Court of the United States of America. June 1, 2010. ABAnet.org. October 5, 2010. http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-751_NeutralAmCuACLJ.pdf

 

As do I.

I detest the "slippery slope" argument, but I'm loath to accept any restrictions on offensive speech, no matter how offensive it is on those very grounds. The Phelps clan was not harming anyone. They weren't even calling for violent acts. Just nasty, evil words.

If the dead, the living, the gays and the straights of this nation can't withstand the dying cries of a church, whistling past the graveyard, then we should all pack up and call it quits.

My guess is that it will be unanimous.

But it's nearly unimaginable that the Supreme Court will rule in Snyder's favor.

And as you know, no threat was issued. Though, Phelps does bear a striking resemblance to the creepy preacher from Poltergeist. That

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~String

 

Uncanny…

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But frickin Hilarious!

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. . . okay. Now this is just funny.

By the same people:

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Apparently nerds are now cast into hell.

I swear we are all being punked. Like, Ashton Kutcher is going to pop on TV and say, "Gotcha!"

Who will hated by the godhatesfags people next?

~String

 

The venue and applicable noise laws would be the deciding factors regarding playing music. Offensive or not, we all have an equal right to play music in pubic or in our own private residences. If any music is allowed in a public area, then offensive music is also allowed.

All good questions. I'd absolutely support the right of any group to march or protest on public streets, but I don't consider a funeral to be a public event.

A funeral is a very personal, often tragic event attended by emotionally fragile people who (in the case of military funerals) have already given more to our country than most. To ask that they be forced to endure the taunts and insults of a bunch of bigots at such a time is too much.

I'm frankly amazed that none of these protesters have been attacked by grieving families. I can't imagine how I'd react to such an incitement at the funeral of a loved one.

 

How about speech that incites violence or disturbing the peace?

Penal Code 415(3) fighting words

Free Speech and Disturbing the Peace

 

Yeah, there's something to this. I'm inclined to guess that the main issue will come down to privacy, and exactly how that works for military funerals (many of which are on federal lands). But I expect to hear the fighting words angle at least argued.

And I will not be surprised if this leads to changes in legislation to specifically protect military funerals. Some states have already passed related statutes (although they remain controversial) in direct response to the activities of WBC.

 

I would think that the protesters do have the right to picket the correct entity that is causing the problem, not the service men/women who die and are being buried but the different branches of the military that those people served within. Say it was a Marine funeral then the protesters should be allowed to picket any Marine installation in the public right of way. That way the protesters are being heard by the correct people they want to hear what they say, not those who have died because of the military orders that made them go to wherever they were stationed. Those who have died cannot hear the protestors but those that run the military sure can.

 

"Fighting words" have to be directed at the specific person about whom they are spoken. Speech doesn't necessarily qualify as fighting words simply because it's so offensive that it makes people who hear it want to punch the speaker. This almost certainly would not meet the legal definition of "fighting words."

 

You don't think any of this qualifies?

Westboro Baptist Church pastor and founder Fred Phelps and members of his congregation picketed Matthew’s funeral, holding signs expressing anti-gay, anti-American, and anti-Catholic slogans, including “God hates you” and “You’re going to hell.” Westboro Baptist Church also posted an essay on its Web site entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder.” In the essay, statements indicated that Albert and his wife “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”​