I plan to attend oral arguments next week in the case of Snyder v. Phelps. That’s the Supreme Court case involving Al Snyder’s law suit against members of the Phelps family for picketing at his son’s funeral.
In my opinion, this is a major free speech case. The U.S. Constitution appears to guarantee that we can say anything we want, any time we want to, without being called to answer for our statements.
But the Supreme Court has said “Congress shall make no law … abridging the freedom of speech” really doesn’t mean “no” as in never. For example, in Morse v. Frederick (2007), the Supreme Court held that a high school principal did not violate a student’s free speech right when she disciplined the student for displaying the sign “Bong Hits 4 Jesus,” interpreting it to promote the use of illegal drugs. Other “exceptions” include speech deemed to be incitement to riot, defamatory, or pornographic.
Why the exceptions in view of the absolute phrasing of the First Amendment? The answer lies in the Court’s balancing role – that often conflicting rights are at stake. So while speech is given extraordinary weight, in rare circumstances the rights of other persons – such as those mentioned above – must be considered.
Interestingly, the American Center for Law and Justice and Liberty Counsel – two religious right legal organizations – have filed friend of the court briefs in the case supporting Phelps free speech rights. The ACLJ brief argues: “Free speech receives maximum protection when exercised peacefully in a traditional public forum. … The idea that such speech could be subjected to potentially limitless tort liability because it disturbs the atmosphere in an adjoining location is wholly incompatible with constitutional protection for that speech. Indeed, the very point of public demonstrations is often to unsettle the mood in adjacent sites.”
Phelps’s picketing funerals with the message that a soldier’s death is God’s punishment for homosexuality is particularly distasteful. However I believe the ACLJ and Liberty Counsel are supporting Phelps out of concern that if the Supreme Court holds for Snyder, the Court could apply the same rationale to limit picketing of health clinics by Christian anti-abortionists or to curb other forms of aggressive evangelism.
Middle ground is often hard to find in these cases. Yet, forced to choose, I come down on the side of free speech. At the same time, I can support laws which establish a reasonable buffer between picketers and a funeral or a health clinic, or school policies which prohibit students from bullying other students, including taunting other kids perceived to be gay or lesbian.