April 21, 2018
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First Amendment OKs polite and hateful speech

By Janet Mills Special to the BDN, Special to the BDN

An Oct. 2 OpEd in the Bangor Daily News, “Protect private funerals from protest,” regarding the Snyder v. Phelps free speech case in the Supreme Court, misstates the facts of that case in critical respects.

Contrary to the opinion piece, the trial court in Snyder found that the picketers had “complied with local ordinances and police directions with respect to being a certain distance from the church” (reportedly 1,000 feet) and that the father “did not actually see the offensive signs until he saw a television program later that day with footage of the Phelps family.”

The Phelps family was confined to a public area under the supervision of the police. They did not confront the family or disrupt the funeral.

Albert Snyder took offense at what he later saw on television, used an Internet search engine to locate and read more of the Phelpses’ offensive messages and then sued for damages for, among other things, invasion of his privacy.

Whatever way the Supreme Court rules, there are ramifications of this case for both those who wish to bury their dead in peace and for those who wish to peacefully picket, protest or otherwise exercise their right of free speech.

The appellate court found that the Phelps were exercising their constitutional right of speech. But the court also preserved the right of states to regulate the place, time and manner of such protests. That is exactly what Maine and other states have done.

In response to a threat by extremists to disrupt a military funeral in 2007, the state of Maine carefully amended its criminal statutes to forbid activities that disturb the peace of funeral attendees while preserving the constitutional rights of protesters.

Our law protects loved ones at funerals within the bounds of what our servicemen and women have fought and died for without infringing on the rights of others to exercise free speech; and it provides that protection in a manner that can be constitutionally enforced. If someone actually engages in offensive activity in close proximity to a military funeral and interferes with this solemn occasion, under Maine’s law that person will be prosecuted.

The Snyder case is a civil action between private parties and does not involve Maine’s law regulating conduct near or at a funeral. As obnoxious as the Phelpses’ message was, theirs was not the kind of “in-your-face” conduct that would be actionable under our law.

The utterances at issue in Mr. Snyder’s claim for damages were offensive and outrageous. But the First Amendment does not allow us to distinguish between polite speech and hateful or outrageous speech. This is not a political question, a test of patriotism or a popularity contest about how many people take offense at a particular statement.

Once we start carving out exceptions to the First Amendment for speech that is unpopular or offensive, we start down a slippery slope that endangers the right of all of us to hold and express views that may be thought unpopular by others. The views of those in the minority, no matter how disturbing, are protected by the very first amendment to our bill of rights.

The same analysis applies to other derogatory speech. Our Civil Rights Act, for instance, does not ban speech alone but prohibits interference with an individual’s civil rights by physical force, violence, destruction of property or trespass.

While some have questioned the patriotism of our office because we declined to join the amicus brief filed on behalf of Mr. Snyder, just the opposite is true. Our families and co-workers too have fought in battle. They fought for the constitutional rights of all our citizens, including Mr. Snyder and the Phelpses.

As the federal appeals court noted, however, those defending the Constitution must sometimes share a “foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply.”

Janet Mills is Maine’s attorney general.

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