The Inconvenient Truth about Offensive Funeral Protests

All week, I've been listening to the coverage of the "funeral protest" case, Snyder v Phelps

Even though the Supreme Court heard arguments on Wednesday, and even though it is one of only two First Amendment cases this term, I hadn't planned to comment; but the old law teacher in me just can't keep silent anymore. I simply have to weigh in on two things: (1) misreporting of the issues in the case, and (2) the related oversimplification of the possible outcome.

The Issues

Most outlets have reported the story as one that pits the free speech rights of a "whacko preacher" (Phelps) against the privacy rights of the sympathetic father of a fallen marine (Snyder).

Not to be a stickler, but in law, which issues are at issue will affect the ultimate outcome. The case is about the First Amendment; but privacy, as a constitutional matter, isn't really on the table, as much as supporters of Snyder might want it to be there.

For lawyers, and especially for Supreme Court Justices, whether a party is "whacko" or "sympathetic" is entirely irrelevant. Whether we take issue with their characterizations of the parties or not, most outlets are missing the real legal issues in the case.

It is true that Snyder v Phelps is about free speech. It is true that the preacher and his followers picketed the funeral of Matthew Snyder, a marine killed in Iraq, for which the marine's father sued the church and its pastor. But getting lost in the coverage is this key fact: The whole case started when Mr. Snyder sued. He brought a civil case. He claimed severe emotional distress caused by (1) the picketing of the deceased marine's funeral, and (2) the posting a cruel and mean-spirited diatribe about the Snyder family on the church's website. Of course, Mr. Snyder had every right to sue. This is America, after all. And the behavior of the pastor was, arguably, not civil; thus the civil lawsuit. But — and here is the main point — Snyder did not raise any issues of constitutional law.  He sued for money damages. And he won. Millions.

The constitutional issues came up on appeal, when the preacher raised a big red white and blue flag. That's because, like it or not, this is a classic First Amendment case, and preacher Phelps is the one with the Constitution on his side. We balance Mr. Snyder's freedom from tortuous interference with his son's funeral (not a constitutionally protected right) against the right to free speech (the very first protection enumerated in the Bill of Rights).  

Snyder's is not really a privacy case, though he may now try to frame it as such. Instead, the Justices will have to decide whether the protest, however contemptible, was protected by the First Amendment, or whether the father's right to freedom of religion and assembly (the funeral) prevails. Snyder wisely raises "freedom of religion" and "freedom of assembly" before the Court, because those are the only reasonably relevant constitutionally protected freedoms he can now raise in response to the preacher's solid case.

The Outcome

All that being said, I’m not sure the Supreme Court will see it that way. Unlike almost everyone else I've heard talking about the case, I don't think it's at all clear that the Court will find for Phelps and his freedom of speech.

If the late William Rehnquist were still Chief Justice, I am quite confident that free speech would win the day. For all his conservative leanings in other areas, Rehnquist was true to the First Amendment. Under his leadership, a majority of justices would recognize that, as unpleasant as protest can make our otherwise civilized society, it is part of the democratic process. The funeral was not disrupted. Snyder was free to assemble. The funeral went on.

But the Roberts Court is, thus far, much more conservative. This Court might just override First Amendment rights in favor of other interests. The Roberts Court has already allowed, for example, a greater role for religion in public life, suggesting a willingness to tinker with First Amendment doctrine. Moreover, nothing in their questions at oral argument this week gave any indication of support for free speech. If anything, the Justices seemed uniformly skeptical of Phelps' arguments. Finally, and most disconcerting, is the Justices' decision to take the case at all; it makes Court-watchers wonder, "Why? Why take the case at all? Unless to unsettle settled law…”

I, for one, do not think it will be a slam dunk, by any means. I am far from certain the Court will rule for the "Whacko Preacher," though I believe they should. If they don’t, his family unwittingly will have undermined one of the very rights Marine Lance Cpl. Snyder died to protect and preserve.

Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.