The First Amendment and free speech will be at the center of an argument next week before the U.S. Supreme Court in a case involving a Kansas church’s protests outside a soldier’s funeral in Maryland.
Two constitutional scholars Monday night disagreed on how the nation’s highest court should rule during a Constitution Day forum at Kansas University’s Dole Institute of Politics.
The case, Snyder v. Phelps, will be argued Oct. 6, and it involves the Topeka-based Westboro Baptist Church, mostly made up of members of the family of Fred Phelps, known for picketing funerals of dead soldiers across the country to gain attention for their anti-gay message.
“The argument made on the Phelpses’ side, if they lose, it’s the end of free speech as we know it; I don’t buy that. I don’t accept that,” said Stephen McAllister, the state’s solicitor general and a Kansas University law professor.
McAllister, who helped file an amicus brief in the case for Kansas, 47 other states and the District of Columbia, said the states are asking the court to narrowly draw a line around funerals in a “unique setting” giving grieving families the right to be protected from hostile picketing and personal attacks.
In a civil case, a jury awarded the father of Matthew A. Snyder, a Marine lance corporal killed in Iraq, millions of dollars, but the Fourth Circuit U.S. Court of Appeals overturned it and ruled that messages on signs outside the funeral and postings on a website are protected speech.
Christina Wells, a University of Missouri law professor and KU graduate, said that if Snyder wins it would “be very bad for free speech law.”
“It really does have the potential to undermine a lot of different areas of free speech law because that liability is based purely on offensive messages,” said Wells, who also filed an amicus brief in the case with other First Amendment law professors.
Wells and McAllister debated the issue in front of about 300 people at the Dole Institute on KU’s West Campus.
Wells said the Phelps family protesters were hundreds of feet away from the funeral, that they obeyed police directives and that Snyder’s father didn’t know protesters were there until he saw news coverage later.
She worried a ruling that favors Snyder could open the door for future lawsuits on other free speech issues.
“The question is, can they stand aside and a certain distance away and try to reach people as they’re coming in?” she said.
But McAllister said the Phelpses aren’t really arguing the facts and they just want a First Amendment ruling in their favor.
“Frankly they are targeting a private event. They are targeting a private family,” McAllister said. “They are doing it because they know the attention it gets.”
Both scholars said they were surprised the Supreme Court took the case but that it was a sign they want to make a clear ruling on the issue.
“In what way,” Wells said, “we’re not sure.”