Monday, October 11, 2010
Good artice on the funeral picketing case (Snyder v. Phelps)
Although the behavior of Phelps and his group is certainly obnoxious and offensive, the First Amendment protects it. Unless it falls within certain specific exceptions, even obnoxious, offensive speech is protected. Phelps' First Amendment activity falls under none of the exceptions. For Phelps to lose, the Court would have to make up a new exception. If it does so, then do we start down the slippery slope? Further, the facts are not as bad as one might expect. Phelps held the protest on public property, completely followed all police directives and laws, and the demonstration was not visible or audible to Snyder and the funeral party. Phelps did not enter the church and they stopped the demonstration before the funeral service started. Under current First Amendment law, Phelps wins and the grieving family loses. That's the price we pay as a society for being a free one. See article at LINK
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I agree that Phelps and his group are obnoxious and offensive, but they are protected by the First Amendment. Do you think the Court would ever make up a new exception to keep groups from protesting near churches or funerals? Had the group protested where the Snyder family could hear/see them, then they may have a case, right?
ReplyDeleteKim:
ReplyDeleteThanks for the post. I think that Snyder will lose. However, at oral argument, some of the Justices asked questions about possible exceptions. I don't think they will find any. As long as Phelps' protest was (1)peaceful, (2)did not constitute "fighting words" or was likely to cause a breach of the peace, (3) was about a public issue and (4) was on public property, I don't think the fact that the Snyder family could not see or hear them would make a difference. Public flag burning is offensive to many but it was found to be protected by the First Amendment in Texas v. Johnson, 491 U.S. 397. The Court did not make an exception there. Wearing a jacket in public with the words "F**k the Draft" was found to be protected in Cohen v. Calif, 403 U.S. 15. See also Terminiello v. Chi. 337 U.S. 1. There are lots of similar cases in the U.S.Courts of Appeals. Although these cases involved conduct that might seem less offensive than Phelps', the basic principle is well established. People spouting popular ideas generally don't need First Amendment protection. Religious and political groups that are unpopular with the public and government need it the most. The U.S. Civil Right movement was unpopular with many government officials and segments of the public. Letting the Phelps' of the world have their say is part of the cost of having a free society. Freedom is not always free of negative consequences.
Excellent response professor. Well stated.
ReplyDelete44: Thanks! I hope it was clear that it makes no difference for First Amendment purposes that Phelps' demonstration had, or had not, been seen or heard by the Snyders--the result will still be the same. Phelps wins either way.
ReplyDeleteThe sincerity of our commitment to constitutional rights is often tested when the facts lead to a result we don't personally like. Commitment requires that the go with the constitutional principle. Otherwise we are just sunshine patriots and summer soldiers.