This article first appeared in the St. Louis Beacon, Oct. 7, 2010 - The fate of Missouri's law barring protests at funerals may hinge on whether the U.S. Supreme Court decides to carve out an exception to the First Amendment to protect mourners at private funerals.
U.S. District Court Judge Fernando J. Gaitan Jr. ruled in August that Missouri could not enforce its ban on protests within 300 feet of a funeral during the hour before and after it occurs. But Gaitan added that he was "sympathetic to (the) argument that attendees at a funeral are a captive audience and are deserving of some level of protection." And he noted that the U.S. Supreme Court's decision in a Maryland case could open the door to upholding the law.
That Maryland case, Snyder vs. Phelps, was argued before the U.S. Supreme Court on Wednesday. A number of both liberal and conservative justices appeared, from news accounts, to be looking for a way to write a narrow exception to the First Amendment that would prevent outrageous and hurtful speech at private funerals. The current Supreme Court reads the First Amendment broadly, but even Justices Ruth Bader Ginsburg and Anthony M. Kennedy, staunch free speech advocates, appeared sympathetic to the argument made on behalf of the father of a Marine killed in Iraq.
"This is a case about exploiting a private family's grief," said Ginsburg during the argument. "Why should the First Amendment tolerate that?"
(Click here to read an academic commentary on Snyder.)
Albert Snyder, the father of Lance Cpl. Matthew Snyder, won a $5 million verdict for emotional distress against seven protesters from Westboro Baptist Church in Topeka, Kan., who showed up to protest his son's funeral in Westminster, Md. in 2006. The pastor of Westboro, the Rev. Fred Phelps, organizes demonstrations at the funerals of U.S. soldiers where he and his followers protest the "don't ask, don't tell" policy that permits gay soldiers to serve in the military. Phelps maintains that the death of American soldiers is God's retribution for the nation permitting homosexuality.
The protesters outside the church in Maryland held signs reading, "Thank God for Dead Soldiers," "God Hates Fags," and "You're Going to Hell." They also posted an "epic poem" on their website titled, "The Burden of Marine Lance Cpl. Matthew A. Snyder. " Matthew's father, Albert, maintained that the poem made him ill and worsened his diabetes and depression.
A jury agreed that the protesters had intentionally inflicted emotional distress on Snyder. But a federal appeals court threw out the verdict, classifying the speech as "rhetorical hyperbole" protected by the First Amendment. It cited the U.S. Supreme Court decision that protected a Hustler parody of the Rev. Jerry Falwell supposedly having sex with his mother in an outhouse. One major difference between Snyder and Falwell is that Snyder is a private person, while Falwell was a public figure. Criticism of public figures has greater leeway than of private persons.
Margie J. Phelps, daughter of the pastor, argued to the Supreme Court that Snyder had turned the funeral into a public event and that church members had come to argue a public issue. She said that the protesters had, as always, followed police instructions about where to stand. They also left before the funeral began, she said. As long as protesters obey the time, place and restrictions laid down by authorities, their speech should be protected, she said.
The same year that the Westboro protesters demonstrated at the Snyder funeral, they showed up at the St. Joseph, Mo. funeral of Spc. Edward Lee Myers. That led directly to the Missouri law named after the dead solider.
Gaitan initially decided that the law could go into effect, but the 8th U.S. Circuit Court of Appeals in St. Louis disagreed. It applied a precedent from 1999 in which it had ruled that anti-abortion protesters could demonstrate in front of a Nebraska church where an abortion doctor was a deacon.
The court said that just as the right of the worshipers to peace and quiet at the church was outweighed by the anti-abortion protesters' First Amendment rights, the Westboro protesters could likely show that "any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech."
Gaitan wrote in August that he was bound by that precedent, but raised the possibility that the U.S. Supreme Court's decision in the Maryland case could topple the precedent and allow the Missouri law to stand.