Common readers of this site will know all too well that I’m a fierce partisan for the cause of gay equality — and that I don’t have a lot of patience for those who couch their arguments to the contrary in simple animus.
That makes it fairly hard to say what I’m about to say. Yesterday, the Supreme Court elected to hear oral arguments in Snyder v. Phelps (yes, that Phelps), which presents the case of whether Fred Phelps’ outrageously offensive picketing of soldiers’ funerals (“God Hates Fags”; “God Hates Soldiers”; “Thank God for IEDs”) can, of its own force, constitute intentional infliction of emotional distress, or an invasion of privacy. The district court found in the affirmative; the Fourth Circuit reversed.
The circuit court is probably right.
There’re a lot of reasons why, and they’re better treated elsewhere. Basically, the First Amendment is a fierce creature that makes no apology for sacrificing quality in favor of quantity of dialogue. Sometimes that’s a good idea, even if it breaks down in the context of modern media, but combined with this country’s almost insurmountably high standard for privacy torts (libel/slander/invasion of privacy), and a general presumption against intentional infliction of emotional distress claims, the family of Lance Corporal Matthew Snyder are set to lose on the law what they’d win under any moral rubric. Their son died in service of his country; at the least, he deserves from us a respectful service. But this is the price the First Amendment exacts.
Interestingly, in another context, there’s ample room for the opposite conclusion. It’s not immediately clear that a law or a district court injunction restricting political activity at a cemetery, while it’s being used for a memorial service, would be invalid for unduly burdening the right to free speech. The case for our side is stronger if it’s a public cemetery, but it works in the private context too. In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court upheld regulations limiting noise near schools, on the theory that the noise affects the government’s interest in the related building; similarly, “reasonable time, place, and manner” restrictions on picketing in front of residences are constitutional to protect the inhabitant’s privacy and interest in having a home. See Frisby v. Shultz, 487 U.S. 474 (1988).
Not surprisingly, this comes up a lot in the context of abortion protesters, because those types are about one step removed from Fred Phelps as it stands. Truly, there’s a commonality between them — preying on the emotionally vulnerable with viscerally offensive images to express disapproval of a decision they have no interest in — that can’t be ignored. Anyways, the Supreme Court has repeatedly approved of “buffer zones” around individual women, and around the premises of family planning clinics, where otherwise protected speech acts are forbidden. See Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) and Hill v. Colorado, 530 U.S. 703 (2000). The key is that where private speech, even political speech, crosses the line to personal abuse, the legislatures and the federal courts ought not be powerless to protect the blameless citizens, by law or by injunction.
This leads inexorably to the horrifying conclusion that Lance Corporal Snyder’s family should’ve had the presence of mind to file for an injunction against Phelps… before grieving for their fallen son.
That’s a goddamn tragedy. I don’t care what your politics are — the conclusion would be the same if the culprits were antiwar protesters, or anything else for that matter — at the point where a family can’t say goodbye to their son in private, something has gone wrong in this country. Someone should write a bill, and I dare the Supreme Court to strike it down. *
* = Obligatory Star Wars reference removed…