In last week’s column we provided background for answering your question, which refers to Snyder v. Phelps, decided March 2011. In Snyder, the Westboro Baptist Church picketed near the funeral of a military service member. The deceased’s father won a judgment against the church, but the Supreme Court overturned the jury’s verdict.

     Westboro’s picketing is well known throughout the United States. Many people object to it because it is near military funerals, and the church displays signs saying God hates the United States and other messages many find offensive.

    As we said last week, speech on issues of public concern receive the greatest protection under the First Amendment. In Snyder, the Court found the First Amendment was a defense to the father’s claims against Westboro. Noting the controversial character of speech is irrelevant to whether it relates to a matter of public concern, the Court found the father’s distress was based on the content of the message, not where the picketing occurred. For instance, the Court said, parishioners standing where Westboro stood holding signs saying “God Bless America” would not likely have been found liable. It was what Westboro said, not where or when it said it, to which the father objected.

     Although acknowledging Westboro’s choice to convey its views at funerals makes those views particularly hurtful, the Court found the content of the speech, even if offensive to many, related to matters of public concern. The Court also found Westboro picketed peacefully at a public place adjacent to a public street, which space occupies a “special position” in terms of First Amendment protection.    

     Importantly, the Court noted Westboro’s choice of where and when to picket is not beyond government regulation, but is subject to reasonable time, place, or manner restrictions. To the extent laws governing picketing at funerals are content neutral, the Court said, they raise different questions from those in Snyder. However, Maryland did not have such a law Maryland when funeral took place.

Although Oklahoma has a statute regulating picketing at funerals, the Westboro decision would be the same under Oklahoma law, since Oklahoma prohibits picketing within 500 feet of a funeral. Picketing in

Snyder

was approximately 1,000 feet from the church.

 Note:  Read the Snyder decision by going to www.law.cornell.edu, click on “Supreme Court,” then “Decisions This Term.”