Thursday, April 8, 2010

Free Speech -- How far is too far?

An interesting case has been working its way through the court system and now will be debated before the United States Supreme Court this fall. The case involves a situation where free speech rights are being weighed against freedom of assembly, rights to privacy, and the mourning process of a loved one.

This scenario originated in 2006, when Albert Snyder was grieving over the loss of his son, Matthew Snyder, a Marine killed in action in Iraq. At the funeral for Cpl. Snyder, members of the Westboro Baptist Church (of Topeka, KS) demonstrated by carrying signs denoting "You're going to hell" and "Thank God for dead soldiers." This group has demonstrated at multiple funerals around the country, in belief that God is punishing the United States for the nation's sin of "homosexuality."

Initially, Snyder sued the church in federal district court and won his case, claiming a $5 million award. However, Westboro Baptist appealed to the 4th Circuit courts, which overturned the lower court's ruling. Moreover, the 4th Circuit maintained Snyder would have to pay for the court costs of Westboro Baptist, a sum totaling over $16,000.

Snyder has since appealed to the United States Supreme Court, which has granted certiorari and the case is scheduled to be argued in the fall. In hearing the case, the Court will determine three crucial questions:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person in a private matter?

2. Does the First Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and freedom of peaceful assembly?

3. Does an individual attending a family member's funeral constitute a captive audience who is entitled to state protection from unwanted communication?

For a full reading of the case's introduction, check out the link for the case of Snyder v. Phelps, et al.

Now, to address the questions of the case ... with respect to question 1, familiarize yourself with Hustler Magazine, Inc. v. Falwell , which essentially dealt with Hustler publishing an offensive cartoon of evangelist Jerry Falwell. In this case, the Court assessed that Hustler's lampoon of Falwell was protected by the First Amendment's freedom of speech, even if the magazine sought to inflict malice with their parody of Falwell because their depiction of the minister was not implied to be true (and even denoted it was false).

So does the ruling in the Hustler case apply to this scenario with Westboro Baptist Church? No, it does not apply. The Westboro Baptist members were unique in the sense that they believe the offensive remarks they were saying and placing on their signs. In the case of Hustler, their offensive remarks are even noted as saying they were not intended to be taken seriously, but as an attempt at humor.

Moreover, it could be argued that Westboro Baptist's actions are not protected as free speech because of precedents in the Court's history, including no free speech protection in cases of "fighting words" (see: Chaplinsky v. New Hampshire) and depending on actual words used by members of Westboro Baptist, it may violate the test standard set forth in Brandenburg v. Ohio.

If Westboro Baptist's actions are considered free speech, they would be, at best, "an inarticulate grunt" (paraphrasing Justice Scalia).

Question 2 presents a more difficult question to determine. Speech and assembly are both specfically mentioned in the Bill of Rights and how does the Court determine which is more significant? The 4th Circuit's ruling for Phelps has implied what it believes, which presents a problem (according to the Supreme Court) because it would leave Snyder and other funeral attendees with no recourse in fighting off those who would violate their rights to religion and assembly.

In this distinct situation, freedom of assembly and religion should trump speech because Phelps and other members of his church went to the funeral for the specific purpose of disrupting the funeral. Phelps' mission was to violate the rights of another citizen, and thus claims the Constitution gives him the freedom to do so.

The mess is further complicated by the fact that this case is between two private citizens and the government is not specifically creating a law or attempting to enforce a law that harms their rights. Can citizens be held liable in the same way as the government?

Question 3 concerns protection from unwanted communication and this seems an easy question. Those attending private funerals should have this protection. The Court upheld a statue in Colorado (Hill v. Colorado) that regulated where free speech could take place. How can there not be a privacy issue at stake here?

Vote is for Snyder in this case. Your thoughts?


  1. I'll argue for someone's right to free speech all day long until that freedom impedes upon the rights of others. That is clearly what has happened here and the church has crossed the line and impeded upon the rights of the family here.

    The other problem here is that there is evidence that suggests that the church has not incurred any legal fees because their attorney is the daughter of Phelps and has always done her work for the church as pro bono in the past.

  2. I agree with Randy, when someone's rights impede upon the rights of another lines are crossed and action should be taken. To me it is obvious that Snyder's rights were violated. With that being said, how do we tell one individual that their rights are more important than another's? Don't we allow both to occur, but regulate to ensure that both freedoms are not compromised? The statue upheld in Hill v. Colorado is a prime example.

    Very soon a flash mob, with a peaceful and positive dance inspired message of love and diversity, will be protesting the presence and hate-filled messages of the WBC in Charleston, WV. However, law enforcement is concerned about direct contact due to the large number of participants and has therefore only allowed permits for different locations during the same times that WBC protests occur. Is this a violation of anyone's rights? Or is it a necessary regulation to protect the rights of those involved?

  3. Obviously most people are going to say that they shouldn't be allowed to do that, and I think you guys have already made a strong case for why.

    One thing I would wonder about is if the speech could be considered almost as inciting violence? Not really directly, but they target areas like funerals and other emotional areas (like today in Charelston part of Westboro's protest thing is "God hates coal miners") where people are in mourning and very liable to lash out violently at these people who go around trying to pick at people's sore spots.

  4. Don,

    Great Topic blog. One thought I didn't see mentioned in the blog. I saw on the news that the Snyder didn't even notice the protesters during his sons funeral, and was only told about it later. If thats true I think it is huge. It's hard to argue that they infringed on him if he didn't even notice them.

    In general I believe the restrictions on speech should be as narrow as possible. It is precisely the disgusting comments of the westboro moron's that need protecting.

    I have watched with interest Mark Steyn's ordeal with the Canadian Human Rights Commission over his writings regarding terrorism and the muslim world. I think it is a perfect illustration of a government more worried about not offending someone than an individual's right to express themselves.

    I think the court has been right to say we can't endanger others with our speech, but I don't think we should ever limit speech because it might be offensive. What's offensive is way to open to interpretation and who is in power

  5. I would comment but it is late and I am tired. Those who know me here know that I always like a good debate :) I will reserve my right to free speech for later :)

  6. David, I would normally agree with you, but some forms of "speech" are permitted to be silenced. There is no such thing as true "free speech." Such a notion is dangerous.

    I was interested to read about what you stated pertaining to Snyder's having to be informed of protestors ... I'll have to dig into that.

  7. Wow. No one is playing Devil's advocate here. Well I've never been one to do that and I won't start now.
    The argument appears to be that these protesters were protesting the war and believe "God is punishing the country based on our sins of allowing homosexuality." If this were the case, a funeral for a fallen Marine is not the place for this demonstration.
    I haven't looked into even seeing if this man was a homosexual, but if that were the case they may have a leg to stand on. Posts on a website or blog regarding the matter would certainly be protected under free speech, but a demonstration which as many have stated seems an awful lot like fighting words (I reserve the right not to be confrontational and speak my mind fully on the inappropriateness of these words) at a funeral which is a deeply religious gathering is absolutely not protected. This is not placing a limit on their right to express themselves, but rather a reflection of the venue in which they did so.
    To make an analogy, you don't see Christians interrupting worship services at a synagogue or a mosque because they feel like they are wrong. Some radicals even see other religions as an abomination against their God simply by existing and worshiping. While these radicals can protest in Washington or in their town halls, they are not protected to infringe on the right to religious freedom of Jews or Muslims or vice versa.
    Their actions were not only in bad taste, but were definitely unlawful and a precedent does need to be set. While I am resolutely against any limitation of free speech as I would voice in a topic regarding public radio, this is not in my opinion a question of that right whatsoever. I actually applaud the father of this Marine for keeping his actions civil as opposed to allowing his pride for his son and the sacrifice his son made to allow him to make a fighting response to their fighting words.

  8. I heard about this case on the radio, and feel pretty strongly that the protesters were 'in the wrong.' So thank you, Don, for elaborating and providing some precedents in law and specific examples to give my gut feeling some legal justification. Not only were the protesters' messages inflammatory and likely to incite violence, I would imagine there is also be an argument in there for slander.

    To Americans: you can exercise your rights just as much as you darn well please to your own benefit, vanity, beliefs, etc. But, as soon as your rights are directly impeding on others' rights, whether or nor you agree w/ those rights, you are stepping over your bounds and outside of the protective border that is your rights.

    Again, thank you, Don.

  9. Don,

    I was not meaning to suggest the right to free speech should be universal. I agree it cannot be. I think the court has largely been right over the years especially in regards to limit speech that endangers others.

    I do think we must not allow restrictions on "offensive" speech to lead us to where Canada now finds itself.

    In college every spring the Klan came to town and every year we had one professor leading the charge to get them banned. I always found it silly because by allowing them to talk they showed themselves to be idiots unworthy of our attention. Thats kinda how I feel about the truly disgusting actions of Westboro.

    I'm curious did you write this before they decided to show up at the WV coal mine?

  10. Here is a link a good article about the case, Snyder himself, and the church.