Limiting Free Speech: The case of Snyder v. Phelps

Robert Showah

Opinion Editor

This past Wednesday the United States Supreme Court heard Snyder v. Phelps, the same case VCU held a mock trial of just two weeks ago. It revolves around Albert Snyder whose son’s military funeral was picketed by the Westboro Baptist Church after he was killed in 2003 in Iraq. Snyder is suing WBC for intentional infliction of emotional distress.

The most difficult part in forming an opinion on this case is removing one’s own personal thoughts about the WBC’s outrageous and offensive protests. The court’s inability to make a decision without regard to precedence makes concluding the case’s question much less ruling difficult to determine.

I was able to briefly attend the oral argument and hear seven of the nine justices speak. Each seemed eager to propose questions to the Snyder counsel. While there many multiple disputed details about what happened on the day of the protest, the overriding point of conflict was traced back to a 1987 Supreme Court case.

In Hustler Magazine v. Falwell, the magazine had published a fictional, satirical parody article of the Reverend Jerry Falwell. The reverend sued claiming the article caused emotion distress. The court unanimously held that the parodies of public figures, which cannot reasonably be considered true, are protected by the free speech clause of the First Amendment.

Phelps is attempting to brand Snyder as a public figure due to his multiple media appearances after the much-publicized funeral. Snyder’s legal counsel argues he is a private citizen and that a line in restricting such speech ought to be drawn.

It is a stretch to argue that Snyder is a public figure. Then again the church did claim to comply with local laws involving protest especially during funerals. It should be kept in mind that the members of the WBC, of whom consistent mostly of the Phelps family, are not legal novices. Despite taking full advantage of their First Amendment rights, they know well their boundaries as many of them are lawyers.

For example, the WBC claims that they use funerals to attract attention to their message but do not necessarily protest the funeral itself – although I am sure they do not mind that.

Opponents of the WBC, like the Snyder family, believe in exceptions to “free speech” much like those created in past cases involving obscenity and cross burning with an intent to intimidate.

I would be more surprised to find the court to rule in Snyder’s favor than not for one reason Justice Ruth Bader Ginsburg raised during the oral argument. She questioned the upbringing of such a civil lawsuit when there already exist state laws that create buffer zones of time for certain protests.

In other words, if the court can simply defer to state and local laws to determine that, for example, protests of funerals cannot occur after a specific time in a specific proximity, then why run the risk of unnecessarily limiting free speech?

These along with more complex questions will arise as the court determines their ruling.

Then again, the court can interpret the WBC’s signs as “fighting words” of which can be a crime if it leads to a breach of the peace as decided in Chaplinsky v. New Hampshire. Though the court narrowly defines these exceptions, and emphasizes that offensiveness does not always qualify as “fighting words”.
Further cases can be referred to but the fact is that this is not an easy case to decide. A difficult reality despite hearing kids from the WBC in front of me in line to get into the Supreme Court building nonchalantly chatting about the difference between a Jew and a fag.

If the court decides to create a new exception that does not legislate from the bench, I only wonder exactly what it will be, otherwise a ruling further protecting the right to free speech will be imminent when the court is expected to announce their opinion early next year.

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