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The Military Funeral Protest Case

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Mark Sherman has this story for AP previewing Snyder v. Phelps, No. 09-751, the military funeral protest case to be argued Wednesday, October 6.

One thing Al Snyder wants to make clear: His boy fought and died for freedom in Iraq, but not for the right of some "wackos" to spew hate at soldiers' funerals under the protection of the Constitution.

"It's an insult to myself, my family and the veterans to say this is what our military men and women died for," Snyder says, barely concealing his anger.

Yet more than four years after the death of his only son, Matthew, Snyder is in the middle of a Supreme Court case that raises almost precisely that issue.

This is a civil torts case, not a criminal case.  However, if the Court brings restriction of these kinds of protests under the "time, place, and manner" umbrella, as I think it should, it would clear the way for the application of disorderly conduct statutes as well.

And there is one more criminal law hook, at the end of the story:

But he also struck a more ominous tone. "It has to be stopped," Snyder said. "If the courts don't stop it, believe me, someone is going to."
One of the reasons we have government in the first place is to protect people through an ordered legal system. If that system fails, some will resort to protecting themselves.  I think Mr. Snyder's predicition is correct. 

The right of free expression is certainly important, but it is also subject to reasonable limits, and the Phelps group is way beyond any reasonable limit.

Here is my rule of thumb for First Amendment challenges to legal restrictions. If I were an autocrat bent on stifling dissent, how useful and effective would this restriction be for that purpose? Would it seriously crimp the ability of those who disagree with my policies to get their message out, or would getting around it be trivially easy?  If the latter, it's probably not a First Amendment violation.

The Phelpsians can simply take it somewhere else.

2 Comments

I have always found "slippery slope" arguments to be somewhat fatuous, but IMHO, there is no slope so slippery that the restriction of the actions of the Westboro Baptist Church in this case will affect the rights of others to exercise their free speech rights. I agree with Kent S. -- the Court should find that prohibiting this particular conduct is a reasonable time/place/manner restriction and be done with it.

I am probably as pro-First Amendment as anyone and I am very supportive of an expansive interpretation of the First Amendment, but I view this as akin to harassment of people sitting at a table in a sidewalk cafe or waiting on line to go to a movie theater. People shouldn't be expected to have the "I'm glad your kid's dead" crowd showing up at their kid's funeral. Under current First Amendment law, people aren't expected to walk out of their homes to hear stuff like this on the sidewalk, so why does the Constitution give the Phelpses the right to shove this stuff in their faces when they go to a funeral?

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