May 27, 2018
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Protect private funerals from protest

300 dpi Rick Nease color illustration of families on either side of dark leafless tree and marker, half black, half white. Detroit Free Press 2007

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By Lindsay Charles, Special to the BDN

Albert Snyder buried his only son, 20-year-old Lance Cpl. Matthew Snyder, on March 10, 2006. As he made his way from the private viewing to the funeral, he was confronted by Fred Phelps and other members of the Westboro Baptist Church, carrying signs such as “Thank God for Dead Soldiers,” “You’re Going to Hell” and “God Hates You.”

A jury found the Phelpses guilty of intentional infliction of emotional distress, invasion of privacy and conspiracy. The trial court correctly upheld the verdict, but it was overturned on appeal. Now the Supreme Court must decide whether the First Amendment protects “psychological terrorism” targeting a private person at a funeral. Forty-eight states and the District of Columbia say no, but Maine and Virginia have chosen to stand on misbegotten principle.

The Supreme Court will hear oral arguments in Snyder v. Phelps the first week of October and should rule in favor of Mr. Snyder. The attorneys general of 48 states and the District of Columbia submitted an excellent brief, arguing that the U.S. Constitution does not require the perverse result reached by the appeals court in this case. The core purpose of the First Amendment is to protect citizens from the government; it was not meant as an impenetrable shield to protect those who intentionally harm private mourners with their hateful invective.

The First Amendment guarantee of “freedom of speech” has always been subject to certain regulations and restrictions. But more importantly for this case, it does not guarantee a right to make people listen.

In the 1988 case of Frisby v. Schultz, the Supreme Court ruled that a town could prohibit picketing on public sidewalks before an individual residence, because of the state’s strong interests in supporting residential privacy and protecting the unwilling listener. “Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different,” the court said.

The same is true for a private funeral service. Mr. Snyder had one chance, at one church, to say goodbye to his son and give him a Christian burial. The Phelpses knew this and exploited it. The First Amendment does not prohibit holding them accountable for their actions.

Remember, we’re not talking about putting the Phelpses in jail for their reprehensible conduct. The only issue here is whether our Constitution allows Mr. Snyder to be “compensated” for the emotional and physical harms he suffered as a direct result of the Phelpses’ actions.

Of course, money can never compensate Mr. Snyder for what he has endured. But another purpose of tort law is deterrence: We allow Mr. Snyder to collect from the Phelpses in hopes that Gold Star families will not suffer this kind of harassment in the future.

Over 40 states, including Maine and Virginia, have laws that regulate protesting around funerals. Forty-nine attorneys general, acting as their states’ chief law enforcement officers, came together to defend these laws and the mourners they were meant to protect. Janet Mills of Maine and Ken Cuccinelli of Virginia were conspicuously absent. This was not only a bad legal decision, it was bad politics.

Ms. Mills has spent her impressive career making or enforcing Maine’s laws. This brief presented her with an opportunity to not only defend the constitutionality of Maine’s law, but also to make a statement about honoring Maine residents who have sacrificed their lives in service of our country.

Rural states such as Maine have suffered disproportionate losses in Iraq. Instead of sitting on the sidelines, we should jump at every opportunity to make our voices disproportionately loud. Unfortunately, Ms. Mills missed her — and our — chance to show support for military families who have paid the ultimate price.

Lindsay Charles of Freeman Township is an attorney with a special interest in First and Second amendment law.

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