LL&D Law
Supreme Court Addresses Picketing at Military Funerals

by Susan B. Loving
4/14/2011 4:02:00 PM

     Snyder v. Phelps was decided by the United State Supreme Court in March 2011. In that case, the father of a deceased military service member sued the Westboro Baptist Church, located in Kansas, based on its picketing in Maryland, near the site of the service member’s funeral. The deceased’s father sued for intentional infliction of emotional distress, invasion of privacy, and conspiracy. The Supreme Court overturned the jury’s verdict in favor of the father.

     Undoubtedly, the First Amendment is the best-known of the rights guaranteed by the Bill of Rights. While in principle, most of us cherish the right of free speech, in practice, the right can sometimes lead to difficult, hurtful, or even harmful results. Thus, courts have held that not all speech is of equal First Amendment importance. For instance, the government may prohibit us from yelling “fire” in a crowded theater, if we know there is no fire, or from inciting violence.  Courts will also sometimes allow restrictions on speech where the listener is a captive audience, unable to escape being subjected to the speech, and so on.

     In evaluating the government’s right to limit speech, among other things, a court examines whether the content, form, and context of the speech is “of public concern,” whether censoring the speech may be a “threat to the free and robust debate of public issues,” and whether there would be a “potential interference with a meaningful dialogue of ideas.”  As the Snyder Court noted, speech on “public issues,” rather than private matters, “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection,” because the First Amendment “reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, because speech concerning public affairs is more than self-expression; it is the essence of self-government.”

     Of course, the problem in Snyder was many people object both to the content of the church members’ speech, and the method they use to gain public attention. Next week we will discuss why the Court overturned the jury’s verdict in the father’s favor.

Note:  You can read the Snyder decision by going to www.law.cornell.edu, click on Supreme Court, then Decisions This Term.


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