Archive for Tuesday, September 28, 2010

Scholars debate funeral-protest Supreme Court case Snyder v. Phelps at KU event

A KU law professor and 1st Amendment scholar debated the case at the Dole Institute of Politics.

September 28, 2010


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.”


BorderRuffian 7 years, 8 months ago

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

I am trying hard to imagine how the drafters of the Bill of Rights would have regarded the Phelpses' twisted misuse of "freedom of speech" in such a way that it infringed the rights of other individuals.

As the Supreme Court considers whether to uphold the aggregious offenses perpetrated by the Phelpses, I also wonder how the Ninth Amendment ("The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") might apply.

I simply cannot imagine how the framers of the Constitution and its Amendments would have EVER construed the Constitution, in its whole or in its various parts, be used as a cudgel to hurt, harass, or infringe upon the rights or liberty of another individual.

dncinnanc 7 years, 8 months ago

"I disapprove of what you say, but I will defend to the death your right to say it."

verity 7 years, 8 months ago

No freedom is absolute. With freedom comes responsibility. If not used responsibly, freedoms are often taken away. Laws are made because people have behaved irresponsibly.

Obviously this is an issue on which reasonable people can disagree, but I see no reason why a law keeping protesters away from private funerals would have any dampening effect on our freedom of speech in general. You can't have certain kinds of establishments within so many feet of a school or church. Is this any different?

Evan Ridenour 7 years, 8 months ago

The constitutionality of the funeral protest statutes is not an issue in this case.

There wasn't even an active statute in that jurisdiction at the time the events occurred (but there is now).

chzypoof1 7 years, 8 months ago

The problem is, where do you stop? And WHO decides who we censor next? I can't stand Phred, but he has the right to express his opinion and his religious beliefs. Just like the KKK, the Black Panthers, etc.

Again, where do we draw the line?

verity 7 years, 8 months ago

Where do you stop? We already have limitations and restrictions on our freedom of speech, i.e., the old "you can't yell fire in an crowded theater," you can't lie under oath, slander someone or threaten to murder someone.

Funerals are in a category of their own and can't be compared to anything else. I don't see that "where do you stop?" has been a problem with restrictions so far.

I understand and respect the opinion that you can't outlaw these kinds of protests because of freedom of speech, but I don't see it as being a slippery slope issue.

yankeevet 7 years, 8 months ago

The only rights Phelps has is hanging from an old oak tree sitting on a missouri need for his burial; buzzards gotta eat; same as worms.............

Fatty_McButterpants 7 years, 8 months ago

This comment was removed by the site staff for violation of the usage agreement.

Liberty_First 7 years, 8 months ago

This comment was removed by the site staff for violation of the usage agreement.

Scott Kaiser 7 years, 8 months ago

I think that if Phelps and his ilk are allowed to "attend" fallen soldiers funerals and be hateful, disrespectful and disruptive, ALL vets and interested citizens should be able and encouraged to "attend" Phelps' "activities". After all, it is because of all the soldiers past, present and future who have given the right to Phelps to show his (fill in the blank). I can see 100's of counter protesters standing between a funeral and these jackwagons. It could even turn into a beatdown, but I don't advocate violence. Perhaps the VFW, the American Legion and other groups can plan a show of presence as needed.

MyName 7 years, 7 months ago

It's a nice thought, and there are some groups that do something similar, but the reality is that the people you mentioned are more likely to have something better to do with their time, while the Phelps, apparently, don't. Especially since, if they tick someone off enough that they can get taken to court, it's a free payday for them.

onehotmomma 7 years, 8 months ago

Why is asking for respect at the funeral of a loved one limiting freedom of speech? This isn't about what the Phelps' say, it's about the time they chose to say it. There is no need for them to picket at a funeral, they do it then because they enjoy it. They love the "shock value" and negative attention they receive.

Fatty_McButterpants 7 years, 7 months ago

It's hilarious that my comment was removed in the discussion section of an article that addresses freedom of speech...

MyName 7 years, 7 months ago

From the brief that Snyder's lawyers submitted:

"Even where speech centers on a matter of public concern, the speaker cannot harass a private individual who has no connection to that issue and hope to gain absolute constitutional protection for the harassment. By extending such protection to the Phelpses’ intentionally harmful conduct, the Fourth Circuit ignored this principle and essentially immunized the Phelpses from liability without analyzing whether Matthew Snyder’s funeral bore any logical connection to the phelpses’ allegedly “public” issues."

The key is that the suit was for intentional emotional distress, and are limiting it to the Phelps' actions, which sets aside a number of issues related to the Funeral Protest statutes.

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