Snyder v. Phelps: Commentary
Much of this class has focused on how to go about researching the law online. And, seeing as how the course is entitled “Online Legal Research: Free Sources,” this was something I fully anticipated. But this course also touched on the concept of a blawg (i.e., a blog that focuses on legal issues). To be sure, in addition to using the internet to conduct legal research, the web can also be used to find legal commentary. Further, given the fast-past of the internet, one can find such commentary very quickly. Earlier today the Supreme Court handed down its decision in Snyder v. Phelps. This controversy at issue in this case stems from the funeral of an American soldier. Near the funeral site members of the Westboro Baptist Church, Inc. (and especially Fred, Shirley, and Rebekah Phelps) arrived on site picketing signs with such phrases as “God Hates the USA”, “Thank God for 9/11”, “Fag Troops” and “Thank God for Dead Soldiers.” The soldier’s family brought a tort action against the Phelps for, among other things, intentional infliction of emotional distress.
The Supreme Court granted certiorari to address decide whether the family’s interest in recovering in tort for the funeral disruption outweighs the disrupters’ freedom of speech rights. Today the Court decided 8-1 in the negative. Because the First Amendment is one of those areas of law that people tend to widely diverge on, I thought it would be interesting to read some blawgs and commentaries discussing this case. The remainder of this post will address and comment on some of two of the commentaries that I read.
The first commentary I looked at was written by a military veteran. He expresses disgust and shock at the Court’s willingness to allow the desecration of a funeral in exchange for what seems to be, at heart, media attention. Although the commentary seems to emphasize that the demonstration was particularly heinous in light of the fact that the funeral was commemorating a fallen soldier, the veteran does reveal that he thinks society should “respect funerals, regardless of who died.” A particular point that I find to be particularly insightful (and ironic) is the actuality that the protestors are condemning soldiers, but it is “the soldier[s] who fought and died to give them free speech in the first place.” The veteran then goes on to question why the funeral site is a venue worth protecting. He points out that AM talk radio is a protected forum both under the Constitution and the FCC. Although the intentions of the Church demonstrators were likely already obvious, this fact is what upsets me the most. The way I see it: the First Amendment protects the communication of ideas to the public. And it absolutely should and must. But does that necessarily also mean that people get to choose where to speak? Why speak at the funeral site if not to inflict some sort of harm? Wouldn’t their message reach a larger audience on AM radio anyway? And if their concern is with reaching a particular audience (e.g., this particular family), why not send them a one-time letter expressing their views? Although funeral-goers are likely not the traditional captive audience, it’s also likely that people present at a funeral don’t necessarily feel free to just up and leave if they’re emotionally injured. Why? Well, as the veteran in this commentary himself explains, “funerals are solemn, sacred ceremonies, respected by individuals and religions around the world.” Ultimately, I find a lot of merit in the veteran’s argument that “common decency must take precedent when people are at their most vulnerable” and that “[f]unerals are no place for political or any other kind of protest.”
The second commentary that I considered was a paper written by Eliyahu Fink, the Rabbi at the Pacific Jewish Center in Venice, California. Fink proposes that the First Amendment should give way when words outrageously cause actual and intentional injuries. He reasons that when words cause injuries, the result may not be different from battery or assault. In effect, he suggests that societal interests in freedom of speech don’t justify allowing speech to intentionally cause identifiable injury. He posits, “when someone is so affected by words that they cause physical harms perhaps the speech should be unprotected and allow for tort claims and let the jury decide if the claim is meritorious.” I think this proposal has some initial appeal intuitively. My concern with this the flexibility which this standard creates. Are we more concerned with the intentional infliction of distress or with the resulting distress? Because clearly, they don’t often go hand in hand. Under this proposal, I’m not sure what we do when we have a particularly susceptible or vulnerable victim who is very much damaged by words, when those same words would be unlikely to similarly damage other people. Is this something the jury is going to deal with? Do we invoke the eggshell doctrine into this context? I think this is a good starting point that can be expanded upon.