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Analysis: Funeral protests are protected speech

This article first appeared in the St. Louis Beacon, March 6, 2011 - The Roberts court, with the chief justice in the lead, is amassing a strong free speech record by refusing to carve out new exceptions to the First Amendment and by expanding the frontiers of free speech in the areas of campaign finance and hate speech.

Wednesday's 8-1 decision protecting the virulently anti-gay speech of the Rev. Fred Phelps of Topeka, Kan., is the most recent of a series of important free speech decisions by the Roberts court.

Last term the court ruled that corporations could use treasury funds to support political candidates in the weeks leading up to the election. It also threw out a federal law punishing depictions of animal cruelty. Court observers expect the court to toss out California's law against violent video games for juveniles when it hands down its decision in that case later this year.

In fact, the chief justice and Justice Antonin Scalia are sometimes more reliable votes for strong free speech positions than justices considered more liberal, such as Justice Stephen Breyer, who has been willing to uphold government efforts to regulate campaign speech, for example.

Saint Louis University law professor Chad Flanders cautions that it may be too soon to find a trend. The justices considered more liberal still are more likely to support free speech in national security and school speech cases, for example. And Flanders points out that Chief Justice Roberts took pains to stress that the funeral protest decision was narrow.

"So, it's pretty hard for me to see a trend," he wrote in an email.

Missouri Ban

Even if conservatives on the U.S. Supreme Court have become more protective of free speech, their views have had little impact on conservatives in the Missouri Legislature. The day after the Supreme Court's funeral picketing decision, the Missouri House passed a law banning protests within 500 feet of a funeral for two hours before and two hours after it occurs -- a law so broad that many legal experts doubt it would be constitutional.

The vote was 142-15. One of the few opponents was freshman Rep. Rory Ellinger, D-University City. Ellinger, an unreconstructed liberal with a long association with the American Civil Liberties Union, said, "We must protect free speech that we hate."

Liberal History

The protection of vigorous and often unappealing speech began a century ago with cases that mostly involved leftist anarchists, Communists and socialists, such as presidential candidate Eugene Debs, who was thrown in jail for a stump speech supporting draft protesters.

That trend continued for the next half century when free speech cases involved loyalty oaths, obscenity, prosecution of Communist Party members, punishment of war protesters who burned their draft cards, punishment of students who protested the Vietnam war and criminal laws against those burning the American flag.

But, in recent decades, free speech issues have increasingly involved conservative speech. In the 1980s and 1990s some college campuses adopted hate speech codes to protect minorities and women from racist and sexist insults. But Justice Scalia made it clear in a cross-burning case from St. Paul that cities and campuses couldn't protect some groups, such as blacks, while not protecting others, such as gays or union members. In other words, the government can't pick out one side of a debate and favor it by protecting it from fighting words.

The single free speech decision that most angers many liberals is last year's Citizens United ruling allowing corporations to use unlimited funds to support a candidate for office. The five more conservative justices on the court voted to strike down part of the McCain-Feingold campaign finance law that prohibited election ads paid for by corporate or union funds in the weeks just before an election.

Continuity or Not

Roger Goldman, a professor at Saint Louis University Law School, wonders whether today's conservative justices would have supported the free speech decisions of half a century ago.

"I'm wondering if Roberts and the conservatives would have joined the liberals in the old First Amendment cases involving communists, loyalty oaths, obscenity, etc.," he wrote in an email. "In other words, (I'm wondering whether) the new conservatives disagree with the old conservatives of the 40s thru the 90s."

Two decisions from a year ago illustrate Goldman's question. On the one hand, the court threw out a federal law against depictions of animal cruelty. The law had been aimed at a bizarre kind of pornography involving women in high heels crushing small animals. But the law was broad enough to encompass videos of dog fights and hunting, which went too far for the court. The conservatives of 40 years ago might have been more willing to uphold the law than today's conservatives.

"I have a hard time seeing the Burger court striking down the crush video statute," wrote Flanders.

On the other hand, the conservatives on the Roberts court turned down a free speech challenge to the federal law making it a crime to provide "material support" to a terrorist group, even if the support is legal or educational support. The more liberal justices on the court -- Justices Breyer, Ruth Bader Ginsburg and Sonia Sotomayor - would have ruled that the First Amendment protected the right of human rights organizations to provide legal support for a Kurdish group. Justice John Paul Stevens joined the conservatives in that decision.

Conservatives also lined up against student speech in a 2007 decision ruling that a high school student could be disciplined for holding up a "Bong Hits 4 Jesus" banner across the street from his school as the Olympic Torch Relay passed. Chief Justice Roberts said the school could punish what it perceived to be a pro-drug message, while more liberal Justice Stevens would not have allowed the student to be disciplined.

Just as Goldman asks whether the conservatives of past decades would vote differently from today's conservatives, his colleague Professor Joel Goldstein raises the opposite question. Justice Louis Brandeis was one of the great architects of First Amendment law in the 1920s, but Goldstein thinks Brandeis might have dissented in the funeral case.

"Brandeis wrote one of the most powerful justifications of free speech...," Goldstein wrote in an email, "yet also believed in a right to privacy. ... Although I am always skeptical of claims regarding how someone who has been dead for nearly 70 years would have reacted to contemporary circumstances, it's hard for me to believe Brandeis would have thought a funeral was a constitutionally protected venue for speech attacking the decedent.

"...If we as a society recognize a right to privacy that goes beyond spatial confines, I would think that a funeral would rank at or near the top of experiences where the claims would be strongest. Surely someone who is grieving the loss of and burying a loved one in engaged in one of the most poignant of life's experiences...."

Defying Easy Labels

Free speech cases often involve strange bedfellows. When the Supreme Court gave constitutional protection to flag-burning in the 1980s, Justices Scalia and Anthony M. Kennedy joined liberals taking the strong free speech position, while the liberal Justice Stevens joined conservative Chief Justice William H. Rehnquist on the other side.

The First Amendment can frustrate ideological liberals and conservatives because it is agnostic. It protects speech regardless of its ideological hue -- the cross-burnings of the KKK, the Nazi march in Skokie, the anti-gay vitriol of the Rev. Phelps, the flag-burning of war protesters, the student's black arm band protesting the Vietnam War, pornography in a person's own home or own computer, advocacy of revolution, membership in the Communist Party.

The funeral protest is especially confounding. On the one side is the nasty religious speech of the Rev. Phelps and his Westboro Baptist Church. On the other side are the dead American soldiers whose funerals are picketed.

In the Maryland case decided by the court, the Rev. Phelps and six members of his family picketed the Catholic funeral of Marine Lance Corporal Matthew Snyder, who was killed in action in Iraq.

The Westboro Church believes that God is punishing the United States for homosexuality. The signs the church members carried read: "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and "God Hates You."

The picketers had informed the police of the protest and picketed in a public area. At one point, the funeral procession came within 200-300 feet of the picketers and Snyder's father, Albert, said he saw the tops of their signs. Later he saw the full protest on the TV news and said it triggered a deep depression. A jury awarded $10 million for the infliction of emotional distress, an amount reduced to $5 million by the judge. An appeals court threw out the judgment, and the Supreme Court agreed.

In his decision, Roberts touched on some of the great free speech precedents of the past decades, including the flag-burning decision, the New York Times v. Sullivan libel decision and Cohen v. California, permitting a war protester to wear into a courthouse a jacket with the words "F--- the Draft."

In New York Times v. Sullivan, Justice William J. Brennan Jr. had written that the First Amendment required enough breathing space to allow news organizations to make mistakes about public officials. Chief Justice Roberts said that Westboro protesters were addressing issues of public concern and needed breathing space as well.

Just as the court had once uphold a ribald parody of the Rev. Jerry Falwell's "first time"with his mother in an outhouse, Roberts said that the Westboro protesters hyperbole was protected.

Finally, the chief justice wrote that Snyder could no more complain about the protesters invading his seclusion than could those in the courthouse who objected to the obscene criticism of the draft on Cohen's jacket.

The chief justice concluded with some soaring rhetoric of his own. He wrote:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and -- as it did here -- inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course -- to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Future Legislation

Missouri, which already has had two laws against funeral protests thrown out by federal court, is trying again.

Supporters of the bill that passed the House on Thursday pointed out that the decision centered on the First Amendment's application to suits for intentional infliction of emotional distress, not on a criminal law limiting where protesters can picket.

Legislators still can pass laws that restrict the time, place and manner of funeral protests as long as they are not targeting the content of the protests and as long as the laws are not too broadly written.

The consensus of legal experts commenting on the decision online was that the courts were unlikely to uphold laws affecting an area as big as 500 feet from the funeral.

The Supreme Court has ruled that a protective bubble of 300-feet around an abortion clinic -- protecting women seeking an abortion from anti-abortion protesters -- was too big to comply with the First Amendment. The court is unlikely to approve a buffer around a funeral any bigger than it approves around an abortion clinic.

Where that leaves a somewhat narrower law, like the one in Illinois that sets up a 200-foot zone, remains uncertain.

William H. Freivogel, director of the school of journalism at Southern Illinois University Carbondale, reports on legal affairs for the Beacon.