Demonstrations at Military Funerals and the Rev. Phelps

The Rev. Fred Phelps has taken up the habit of picketing at the funerals of soldiers with his children and grandchildren. The family carries signs such as “Thank God for Dead Soldiers,” and “Semper fi Fags.” Fred Snyder, the father of the deceased Marine, brought suit against Phelps for intentional infliction of emotional distress and intrusion into a secluded place. He won $5 million in the lower court, but the verdict was overturned by the Court of Appeals. The Supreme Court has agreed to hear the case.

There is a long line of cases to the effect that offensive speech is protected under the first amendment. Flag burning is protected; so is racist speech. But some offensive remarks directed against an individual are not protected. So the tort of intentional infliction of emotional distress is not unconstitutional. The Court of Appeal thought the speech in question was part of “protected political debate.” It is not clear to me why derogatory statements directed at the dead or their families at funerals should be protected. There is no reason to privilege an overly rigid conception of free speech at the expense of the privacy and dignity of the grieving. Justice Clark once said that there is “no war between the Constitution and common sense.” If the Court rules that this funeral demonstration is protected, in my view, we will need to reconsider Justice Clark's observation.

Comments

[Meg]

I love how you end this article! Way to give more information on the background of the issue. http://bit.ly/9j0AdV

[Matt Barr]

Does it change the analysis if the demonstration was out of sight and hearing of the funeral rite? I'm a First Amendment absolutist in that cheerful way we laypersons have, but I'm not asking the question because I think I know the answer.

[Steve Shiffrin]

Matt, great to see you here on the site. I think you are right. It does
change the analysis. If the speech is out the sight and hearing of the
funeral site, it would clearly be protected speech. Moreover, I think
most first amendment scholars are absolutists in your sense and would
protect the speech on the current facts even though, as I said, I would
not. I am not sure what the current Court will do with this.
Steve