No First Amendment Exception for Military Funerals

      A cardinal tenet of First Amendment law teaches that any regulation of speech or the press is likely to deter some forms of expression on the legal side of the restriction. This “chilling effect” requires that executive officials, legislative bodies, and, above all, courts take care to regulate First Amendment-protected expression only with lines that are either so clear or so stringent that speakers will not risk punishment by accidentally straying across them.
      Supreme Court justices seemed to have forgotten this teaching during parts of the arguments last week (Oct. 6) in the case that pits the family of a deceased U.S. serviceman against the pastor and other members of the fundamentalist Westboro Baptist Church of Topeka, Kan. Driven by the emotions of the case, the justices appeared to be looking for a way to rule against the Rev. Fred Phelps and his family member congregants for demonstrating at Matthew Snyder’s funeral to voice their belief that U.S. war deaths are divine punishment for America’s tolerance of homosexuality.
      Snyder’s father, Albert, won an $11 million award from a federal court jury in a suit against Phelps and his church for, among other claims, intentional infliction of emotional distress. The judge cut the award down to $5 million, including $2.9 million in punitive damages, but the federal appeals court in Richmond, Va., threw the case out on First Amendment grounds.
      Hearing Snyder’s appeal, the justices left no doubt about their disgust with Phelps’ tactics. They recoiled at Phelps’ targeting of a Marine killed at age 20 in Iraq only to be vilified at his funeral as an evil doer. “God hates you,” one of the Phelps’ signs read. Another: “You’re going to hell.”
      The Supreme Court’s rule in the case, however, will be the rule not only for the Westboro Baptist Church but also for other unpopular speakers in the future. As Phelps’ lawyer-daughter Margey Phelps put it, Snyder was asking to punish the Phelps’ “little church” because “they came forth with some preaching that [he] didn’t like.”
      The court faced an analogous situation some 50 years ago when Alabama courts were using libel suits by public officials to punish civil rights groups and national news media for agitating or writing about conditions in the racially segregated South. The New York Times faced so many trumped-up libel suits in Alabama that the newspaper pulled its reporters from the state for a while to avoid being served with papers in the cases.
      The Supreme Court stopped the litigation-driven intimidation in its tracks with one of its most important First Amendment rulings ever: New York Times v. Sullivan. Under the ruling as later expanded, a public official or public figure can recover damages for libel only if the defendant published or uttered a false, defamatory statement knowing that it was false or with reckless disregard as to its truth or falsity. That strict rule, the justices said, was necessary to afford the breathing space that the First Amendment requires.
      The temptation in Snyder’s case, of course, is to think that military funerals could be carved out as one small exception to what the court in Times v. Sullivan called the “profound national commitment” to “uninhibited” debate on public issues. The actual facts in Snyder’s case belie that solution, however. Albert Snyder did not actually read any of the signs at the funeral, in part because Phelps’ group was standing 1,000 feet away from the entrance to the church — as approved by the local police. Phelps actually read the signs only afterward; it was also afterward that he saw the Phelps’ Internet production that depicted Matthew Snyder as having been raised in a godless home.
      Even if the facts supported the jury’s verdict, however, the military-funeral exception is one the First Amendment cannot comfortably countenance. Anti-war activists might choose to protest at military funerals that service members are dying in vain in an unjust war. Free speech would suffer if the courts were free to punish such a protest because the message is upsetting to the survivors. Justices complained to Margey Phelps that other venues were available for the church’s protest and that the funeral was picked solely to maximize publicity. As Phelps aptly responded, all speakers want maximum exposure for their message — and are entitled to seek just that.
      In her questioning, Justice Elena Kagan, the court’s newest member, emphasized the inevitable subjectiveness of the tort of intentional infliction of emotional distress. As one of the elements, the plaintiff must prove “outrageousness” on the defendant’s part. That ill-defined term would invite jurors to impose liability on speakers simply because they dislike the speaker’s point of view.
      The law is not powerless to protect the sensitivities of the families of the fallen. Maryland’s legislature is one of many that have enacted laws requiring protesters to keep a minimum distance away from a military funeral. As long as the speech-free zone is not too extensive, those are probably constitutional. Targeted, individual stalking also may be punishable either civilly or even criminally. But the ruling that punishes the Phelpses today may punish more worthy speakers tomorrow. As Justice Oliver Wendell Holmes Jr. put it 80 years ago, the First Amendment requires “freedom for the thought that we hate.”