Funeral Picketing and Free Speech

The Phelpsians, God bless 'em, are a Baptist church consisting of about seventy-five stout souls.  From Fox:

The group believes that U.S. deaths in the Iraq war are punishment for the nation's tolerance of homosexuality. They say they are entitled to protest at funerals under the First Amendment, which guarantees freedom of speech and religion.

Picketing at funerals is what has earned them their fifteen minutes of fame, and now an $11 million judgment against them in a court of law.  The Phelpsians (not to be confused with Jim Phelps, team leader for Mission Impossible), have made a habit of protesting outside the funerals of American soldiers who were killed in Iraq.  They carried signs such as "Thank God for Dead Soldiers," and "God Hates Fags." 

A jury agreed. On Wednesday, the church and three of its leaders _ Fred Phelps and his two daughters, Phelps-Roper and Rebekah Phelps-Davis _ were found liable for invasion of privacy and intent to inflict emotional distress. Jurors awarded Snyder $2.9 million in compensatory damages and $8 million in punitive damages.

Albert Snyder sued the Topeka, Kan., church after a protest last year at the funeral of his son, Marine Lance Cpl. Matthew Snyder, who was killed in Iraq. He claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.

Mr. Snyder, for whom I have nothing but sympathy, is unlikely to see much of that money.  In the first place, the whole crawlin' lot of Phelpsians have about a million between them, including the Church property, their homes, and their bank accounts.  In the second place, I am sure they are right that the judgment will be overturned. 

Eugene Volokh has a series of posts on the case that amount to a legal brief.  Go there if you want the itemized argument against the judgment.  I will pound more directly on the nail. 

First, let me point out that the Phelpsians are the dullest of blades in the Church kitchen, and they could do with a good scrubbing.  A reasonable person of Biblical faith can believe that God disapproves of homosexual acts.  Only a full-tilt moron can believe that the Biblical God hates homosexuals, or anyone else for that matter.  Moreover, to bring their case to the site of grieving families who have nothing to do with America's policies on homosexuality suggests a worm-infested consciousness. 

That said, freedom of speech and assembly are not subject to qualification because the blathering assembly is offensive to someone.  The Phelpsians kept their signs 1000 feet away from the funeral itself.  Mr. Snyder admits that he did not see the signs during the funeral, but only in the media on the day after.  Was a thousand feet enough?  State and local governments are allowed to define what is a public forum for purposes of free speech (Main Street, a public park) and what is not (private property, public hospital grounds, etc.).  The circle of privacy can certainly be drawn around a funeral location, and can be extended beyond a thousand feet if that is judged reasonable. 

What government can't do is to exclude from that zone only speech that is offensive, or outrageous, or causes emotional distress.  That was the basis of the judgment in this case, and it clearly amounts to content regulation.  The Phelpsians were slapped with an $11 million fine not because they said what they said where they said it, but because what they said in that place was hurtful.  That is content regulation, and the First Amendment does not allow it. 

The Phelpsians are altogether annoying.  But free speech means that people have a right to say, print, and think annoying things.  If the judgment in this case is allowed to become precedent, it could easily be used against to exact punitive judgments against anti-abortion protesters or anti-war protesters.  Heck, I could sue Greenpeace, or my friend and neighbor Jim Seeber for the bumper stickers on his Prius.  The way to deal with the Phelpsians of this world is to arrest them if they step across the line between public forums and private venues.  Lawsuits of this kind are a threat to everyone's freedom.