Oct 032010
 October 3, 2010  Posted by  Court, Featured News

I’ve often said that whenever I hear the words “balance” and “privacy” in the same sentence, I shudder because I know that privacy will lose out against whatever it’s being balanced against. In Snyder v. Phelps, although my heart aches for the families of those who died in service of our country, I think that their desire for privacy to grieve as they bury their dead in a public space does not outweigh First Amendment protections.

Steve Fry reports:

On March 8, 2006, the body of Marine Lance Cpl. Matthew A. Snyder, who was killed five days earlier when his Humvee overturned in combat operations in Al Anbar Province in Iraq, arrived in the United States.

He was 20 years old when he died.

The same day, members of the Westboro Baptist Church in Topeka announced they would picket Snyder’s funeral on March 10 in Westminster, Md., a city of 18,000 about 60 miles north of Washington, D.C.

Events were set in motion that have led to legal arguments Wednesday before the U.S. Supreme Court by attorneys representing Albert Snyder, the father of the dead Marine, and the church’s legal team.

Read more in the Topeka Capital-Journal.

Law professor Dan Solove had discussed the case when the Supreme Court granted certiorari in March and concluded that as hateful as Phelps’ speech was, it deserved First Amendment protection, a view shared by most people who value privacy but fervently defend First Amendment protections. Eugene Volokh, who helped file an amicus brief for the Foundation for Individual Rights in Education, also takes the position that Phelps’ speech falls under protected speech.

Thinking about the case this morning, I thought about everything many of us have written over the past few days in the wake of the Tyler Clementi suicide. We talked about the importance of privacy and respect for privacy. We talked about the need for greater recognition of the serious harm due to privacy invasions. So you might think that some of us would want Phelps found guilty of some privacy-related crime. But there is no crime that they’ve committed with their offensive and odious speech and state legislatures and the Supreme Court shouldn’t try to criminalize this.

If Phelps is guilty of anything, it’s lack of respect for the privacy and pain of those who grieve at a funeral in a public space. Were they intentionally inflicting emotional distress on mourners? I don’t think so. I think they didn’t care about the emotional distress they might cause because they were focused on using the opportunity to get their message across. Is there some law that makes it illegal to be an insensitive vile oaf? No.

We should shun such people. We should stand up and be heard that we find their conduct inhumane. But we should not strip them of protected speech, no matter how offensive.

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