The Supreme Court Conducts a Military Funeral

When they finally posted Snyder v. Phelps, a recent Supreme Court decision, I threw away one hour of my life poring over the metaphysical cogitations of that most arcane of government committees on the subject of free speech and funerals. You already know (or maybe not) that I am a professor of sociology and that one of the subjects with which I get to badger crowds of twenty-somethings is the sociology of law. So, Supreme Court decisions, their illogic, their inanities, and their language, as distanced from real human life as if written by Martian invaders taking a sardonic turn about the room, are nothing new to me. However, this decision did manage to get my hackles up enough to write a short diatribe. What is all this about?

The Westboro Baptist Church (Baptist? a Church?) was up to its old hijinks in that on March 10, 2006 it again picketed another funeral, that of Matthew Snyder, a 21-year old Marine who gave his life for his country in Iraq. For those of you who need catching up, Westboro is an outfit founded and run by a religious maniac named Fred Phelps who claims that the deaths of American soldiers in battle are a result of the toleration of homosexuality that exists in American society. He and his small band of malicious fanatics (all relatives of the same Phelps) travel about the country picketing funerals. The signs above should provide a sense of the wackiness these servants of the Lord feel it incumbent upon them to wave about at military funerals. It should be noted that Matthew Snyder was not gay, was Catholic (another group Westboro merrily defames) and was a private person who had no part in this debate nor did any of his family.

On the day of the funeral, the group from Westboro was picketing at a distance in conformity with Maryland law. Albert Snyder, the father of the fallen Marine, saw only the tops of the signs and learned what they said after the funeral. Nonetheless, he suffered traumatic health consequences from this episode and sued Phelps and Westboro in Federal District Court in Maryland for intentional infliction of emotional distress, among other things. The District (or trial) Court decided in favor of Snyder on some of the state tort issues and awarded him $5 million in damages. The church appealed and the Fourth Circuit reversed the District Court’s decision. The case came to the United States Supreme Court on this basis. The Supreme would have to decide if the District Court or the Appellate Court was correct.

Of course, the decision in any court rests on the way that the law is construed by the courts. Since intentional infliction of emotion distress was an issue, it had to be decided if the trauma experienced by Albert Snyder was of such an extreme kind that freedom of speech itself could be held in check to protect him from experiencing it. Any reasonable person should be able to appreciate the highly emotional nature of a funeral and that it is one of the most, and maybe the most, sacred and respectful actions taken by any civilized society. Surprisingly, the only mention of funerals or their particularly profound nature made by the Supreme Court in upholding the decision of the Appellate Court is to pontificate that the character of funerals does not place them outside the orbit of the requirements of free speech doctrines. Why shouldn’t you be treated to some of the Supremes’ verbiage:

"Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474."

Here is where law tends to go off the rails. Yes, the picketers were on a public street, peacefully protesting, but they were protesting at a FUNERAL. Context must make some difference. You are free to shout “FIRE!” but not in a crowded theatre unless there is a fire. The decision if you read it, and I recommend that you do (just follow the link) has implicit within it the notion that the law is concerned with its own internal logic and sense despite what havoc they may cause to us mortals. But there are other considerations that the logical-rational operation of Western law considers vital. The Kantian categorical imperative must be part and parcel of the law. Its prescriptions and proscriptions are universal. What is good for one is good for all. The Court could just as easily have said that the exercise of free speech stops at the horizon of the funeral. Westboro, as the only dissent by Judge Alito made plain, has a thousand other venues to express its odious opinions. I am not suggesting that Phelps and his ilk should be censored. They can shout their line from the housetops for all I care. But, for every street corner rendered unusable by the presence of a funeral, there are 10,000 other street corners where picketers are free to purvey the same filth, some of them more trafficked and more likely to get attention. There are newspapers and the Internet and so on. Just because they happen to strike upon the name of Matthew Snyder and in their maniacal logic deem his death worthy of opprobrium does not mean that they should be able to render the occasion of his funeral a subject of national discussion and personal anguish. But that is exactly what the Court has said. They blithely acknowledge attempts of states to prohibit all funeral picketing, but by the tone of that acknowledgement I am not encouraged what that future decision might be. In fact, it would seem to me that those who picket funerals should be open on principle to the torts of which Westboro was accused. That would be a much better way to control the situation than trying to solve the problem on a free speech basis or a basis of location.

The principle that the court has established is as insane as the activities of Westboro itself. (Recent news story quotes members of Westboro promising to quadruple the number of funeral protests in the wake of the Court’s decision.) The Court seems to suggest that if some group of people believes that the decision of the Court in this case is sacrilegious, it can picket the funerals of Supreme Court judges and their children with signs that say “God Punishes Disrespect” and “Families Go To Hell who Cannot Tell the Difference Between Right and Wrong” or “American Soldiers Die Because Funerals Unprotected.” Let the funeral combat begin according to the Supreme Court. Speech is such a sacred value that even respect for the dead shall not be allowed to trump it. Of course, who is kidding whom? The very wealthy could easily shield themselves from any unpleasantness, leaving the rest of us to run a gauntlet of picketers at one of life’s most trying and tender moments. In fact, a movement protesting at the funerals of the wealthy, especially bankers and stock brokers would be most apropos. My sign – “Thieves Go to Hell.” Now there’s a sentiment that meets the Court’s test for speech concerning “broad public issues.”

One last thing. Roberto Mangabeira Unger, one of the founders of Critical Legal Theory, suggests that courts can provide the necessary legal logic to justify any result. One can only wonder what the Supreme Court was thinking when it almost unanimously ratified picketing at funerals as something found within the “free exercise clause.” The conservatives on the Court probably identified with the rank homophobia of Westboro itself, and the liberals on the court salivate like Pavlov’s dog when they hear the word “speech.” One can only wonder what kind of horse trading or discussion went on in order to get to this result. This decision is either puerile or vicious, or a little of both. Two hundred thirty years of civilization and our courts cannot even protect a simple military funeral. After all is said and done, whose funeral is it?