A number of states and the federal government have responded to the Westboro decision by enacting or drafting new laws to prohibit protests near military funerals. After all, the Supreme Court said such laws would be constitutional when the Justices tossed out the civil judgment against the church. But it may not be that easy in practice.
Laws restricting speech must be reasonable as to time, place and manner. They must also be "content-neutral." So lawmakers must be careful not to make protestors stay too far away from funerals, or for too long before and after them, or to prohibit any speech no matter how unobtrusive. And the laws must apply regardless of whether mourners agree or disagree with what the protestors have to say.
The Supreme Court has upheld the Westboro Baptist Church's right to protest at the funerals of fallen American service members.
The Court voted 8-1. Chief Justice John Roberts gave the Court's reasoning. He said, “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”
Public protests can be regulated under reasonable time, place, and manner restrictions. Justice Roberts noted that 44 states and the federal government have enacted laws regulating picketing at funerals. But last August a federal court in Missouri struck down such a law as unconstitutional. For now it remains unclear what restrictions might be allowed.
Justice Alito cast the dissenting vote.
Certainly, you can imagine how emotional the funerals are for the families of US service members killed while serving the nation. How much more emotional and stressful do you think it gets when protesters show up and disrupt the funeral process by spreading a hateful message?
A marine's father tried to stop it but couldn't. Now the US Supreme Court may put a stop to it.
The Snyder Saga
In 2006, the body of Marine Lance Cpl. Matthew Snyder was returned home for funeral services. He was killed in action while fighting in Iraq. The funeral was in Westminster, Maryland, and some uninvited guests showed up.
Members of the Westboro Baptist Church, which is based in Topeka, Kansas, were there to spread a message. The signs they carried at the funeral site read, "You're going to hell" and "God hates you." Why? According to this "church" and its pastor Feed Phelps, the deaths of service members in Afghanistan and Iraq are punishment for the acceptance of homosexuality by the US in general and the military in particular.
By the time of Snyder's funeral, the protesters had picketed hundreds of military funerals with similar messages of hate, such as "Thank God for dead soldiers," "God is your enemy," and "Thank God for IEDs."
And they show up at funerals regardless of whether the fallen service member is gay or not. Snyder's father testified that his son wasn't a homosexual. Family members of other fallen service members plagued by the protesters have said the same about their loved ones.
Snyder's father filed a federal lawsuit against Phelps, the church, and others for invasion of privacy and infliction of emotional distress. He won, too. A jury awarded him over $5 million in damages. The victory didn't last, though. A federal appeals court threw out the award. In its opinion, the protesters' messages are free speech protected by the First Amendment.
US Supreme Court
Now, the stage has been set and the US Supreme Court recently agreed to settle the matter. At the heart of the case is the First Amendment's guarantee of the right to free speech.
When it overturned the jury's award, the appellate court found the protesters' speech was "highly offensive" and "repugnant." Nonetheless, the court decided their messages contained "imaginative and hyperbolic rhetoric" that's "intended to spark debate about issues" the church members think are important.
As such, the protesters' speech is protected by the First Amendment. Or is it? We'll find out in the Fall of 2010 when the Supreme Court decides the case. Until then, expect Phelps and the Church to continue their antics - there's a schedule of protests on the church's website.
Whether you agree with the protesters' message or not, there are better ways for the church to get its message out and voice its displeasure with matters like US foreign policy and gays in the military. For example, the church members can write letters and emails and make telephone calls to their Representatives and Senators in Congress. They can also stage their protests in front of those elected officials' offices within their home states.
Free speech or not, it's simply not necessary to protest at the funerals of fallen service members who have no connection to the church.
Questions For Your Attorney
- Don't protesters need a permit or something before they can stage a protest? Why don't cities and towns refuse to give them permits?
- Can I hire private security guards to keep protesters away from a funeral?
- Is there any legal way to stop these protesters between now and the time the US Supreme Court hears the case?