Do Fred Phelps and other members of the Westboro Baptist Church have a First Amendment right to picket the funeral of Elizabeth Edwards with signs saying that “God Hates Elizabeth Edwards”?

Do Fred Phelps and other members of the Westboro Baptist Church have a First Amendment right to picket the funeral of Elizabeth Edwards funeral with signs saying that “God Hates Elizabeth Edwards”? Some might think that this is the issue before the Supreme Court in Snyder v. Phelps where the church members carried signs saying that “God Hates Fags.” The point was not that the soldier was gay (he was not), but that God is punishing the United States for its policy with regard to gays. But the facts in Snyder and the likely facts in Edwards are importantly different. First, neither the soldier nor his family in Snyder were public figures; Elizabeth Edwards was well known to the public. Second, the father in the Snyder case was not even aware of the picketing at the time of the funeral. He learned of it afterward and was repulsed by what the Church had written on its website. The Edwards family will be well aware of the picketing at the time of the funeral.

In Snyder, the father of the deceased Marine recovered for intentional infliction of emotional distress and the Court will decide whether that recovery violated the First Amendment. The Court has already decided that a public figure may not recover for intentional infliction of emotional distress for statements published in the media unless they are knowingly false or published in reckless disregard of their truth. Jerry Falwell could not recover against Hustler Magazine when it published a parody of a Campari ad (an Italian aperitif) in which Falwell’s sexual “first time” was said to be with his mother in an outhouse. The Court concluded that the parody was a joke, that no reasonable person would think the statement was intended to be factual, and, accordingly, that it could not be knowingly false. The Snyder case raises the question whether the holding of Falwell should be extended to statements about public issues (however crazy) in the media inflicting emotional distress in cases not involving public figures. Perhaps the Court will do so.

Suppose, however, that a member of the Edwards family sues for emotional distress. What result? The Westboro Baptist Church has already declared on its website that Edwards was an arrogant witch who is now burning in hell with her son Wade who was killed in an automobile accident when he was sixteen. Falwell makes it clear that the Westboro Church can indulge in vicious lunacy on its website (though the claim about the son might be a different story).

But the First Amendment does not confer the right to speak anywhere at any time. To suppose that the right to spout hate in the media implies a right to inflict emotional distress on grieving mourners at a funeral is to endorse a heartless and foolish privileging of speech over privacy and dignity. We can honor our profound national commitment to robust debate without permitting any such assaults on the emotionally vulnerable.

Comments

[Steve Shiffrin]

Thank you for your comment Janine. Im on your side. And Arizona is in
the process of passing a law forbidding demonstrations within 300 feet
of a funeral. It could be better crafted, but it is not far enough away
in my view.

[Janine]

I as a Christian am justed horrified
that a child murdered by some crazy gunman.But to picket a nine year olds funeral its just wrong wrong wrong!
I am happy that there is legislation to keep you crazy's at the Westboro Baptist Church away from the parents of this child. You really should be ashamed of yourselves.It sure seams that your god is writing his own rules.

[Jimbino]

You saÿ:

"But the First Amendment does not confer the right to speak anywhere at any time. To suppose that the right to spout hate in the media implies a right to inflict emotional distress on grieving mourners at a funeral is to endorse a heartless and foolish privileging of speech over privacy and dignity. We can honor our profound national commitment to robust debate without permitting any such assaults on the emotionally vulnerable."

I come down on the side of free speech. It seems to me you have an absolute right to ANY speech of pure opinion ("He's going to hell.") whether public or private. Otherwise, I couldn't walk up to Obama and declare, "You are an idiot and a traitor to Amerika."

Furthermore, "infliction of emotional distress" has to be intentional and not incidental to normal speech. I'm distressed when folks say, "Have a nice day" and especially when they recite the "Pledge of Allegiance" in my presence.

Moreover, if the funeral were "private," there would be no problem, since the protesters need not be admitted to any private function.

It is clear to me that, at a public cemetery, especially one maintained by taxpayer dollars, anyone may say anything he wants anywhere he wants, as long as he observes rules applicable to anyone reading a laundry list out loud.

Folks who use lands be paid for by the public, whether national parks or forests, or public cemeteries, cannot insist on the right to perform their own religious ceremonies without subjecting themselves to criticism and picketing. For that reason, among others, we need to privatize all our public parks, forests, cemeteries and schools. That would avoid the problem.