Constitution Daily

Smart conversation from the National Constitution Center

Is funeral protest protected under the First Amendment?

October 7, 2010 by Geoffrey R. Stone


The Supreme Court heard argument today in the case of Snyder v. Phelps. Fred Phelps, a disbarred lawyer, is the founder and pastor of the Westboro Baptist Church, a fundamentalist Christian church that contends that God kills soldiers in Iraq and Afghanistan as punishment for America’s tolerance of homosexuality and for allowing gays to serve in the military. In recent years, the church has gained notoriety for staging protests at the funerals of soldiers in order to draw attention to its message.

The controversy

Lance Corporal Matthew Snyder was a Marine who was killed on March 3, 2006 in Iraq. His body was returned to the United States and his family held a funeral for him on March 10, 2006 in Westminster, Maryland. Phelps and members of his congregation picketed LCpl. Snyder’s funeral, displaying signs bearing anti-gay slogans.

One sign, drawing on LCpl. Snyder’s status as a Marine, read “Semper Fi Fags.” Another depicted two men engaged in anal intercourse. Phelps’s message, apparently drawing on the biblical tale of Sodom, is that as long as the United States tolerates homosexuality, Americans will suffer the same fate as the residents of Sodom.

On June 5, 2006, LCpl. Snyder’s father filed a lawsuit against Phelps and the Westboro Baptist Church, alleging, among other things, that the defendants were liable for the intentional infliction of emotional distress. After trial, the jury awarded the plaintiffs damages of $10.9 million. The trial judge upheld the verdict, but reduced the damage award to $5 million. In 2008, the federal court of appeals held that Phelps’s speech was protected by the First Amendment and overturned the verdict.

Will the High Court overturn the ruling?

Snyder’s position is straightforward: There is a time and a place for everything.

The central issue before the Supreme Court is whether the court of appeals was correct that Phelps’s speech was protected by the First Amendment, which prohibits government from making any law “abridging the freedom of speech.” Snyder’s position is straightforward: There is a time and a place for everything.

Whether or not Phelps’s offensive and odious speech is otherwise protected by the First Amendment, it is not constitutionally protected in the circumstances of this case. A funeral is, after all, a solemn occasion at which mourners should be allowed to grieve in peace, without having to confront such odious and offensive messages. Thus, although Phelps may have a right to carry his signs on a public street or in a public park, he has no First Amendment right to do so near a funeral.

First Amendment will likely protect funeral protests

As a matter of simple logic, this may seem to make sense. As a matter of First Amendment law, however, it is simply wrong, as the court of appeals held. The central principle of the First Amendment is that government may not treat some ideas differently from others because people find them odious or offensive. Had Phelps and the members of the Westboro Baptist Church carried signs praising the United States Marines, the Snyder family would not have objected, and if they had no jury would have held Phelps liable for the intentional infliction of emotional distress. This discrepancy is precisely what the First Amendment forbids.

If this were not so, then the following could all be held liable for the intentional infliction of emotional distress, depending on the whims, biases and beliefs of twelve jurors.

  • An anti-war demonstrator burning a flag near a Veterans of Foreign Wars assembly.
  • Protesters carrying anti-sexual abuse placards in front of a Catholic Church.
  • Civil rights marchers protesting racism in Selma, Alabama, in the early 1960s
  • Phelps’s supporters opposing gay rights near a rally for marriage equality.
  • Phelps’s opponents marching near the Westboro Baptist Church with signs accusing the church of being un-Christian

This is not to say that government cannot address the problems posed in this case. But to do so, the government must act neutrally. It cannot treat one idea differently from another. It can, for instance, prohibit noise that might interfere with a funeral, it can prohibit gatherings that block egress and ingress to a cemetery, and it may even be able to forbid congregations of people near a cemetery while a funeral is in process – as long as the rule applies to all speakers, without regard to the message they wish to convey.

That is why the Supreme Court will affirm the ruling of the court of appeals and hold that the jury verdict violated the First Amendment.

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at The University of Chicago and a Visiting Scholar in Residence at the The National Constitution Center.

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