Give States Bigger Voice on First Amendment Issues

"Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. [His] father selected the Catholic church in [their] hometown...as the site for his son's funeral. Local newspapers provided notice of the time and location of the service." Snyder v. Phelps, 2011 DJDAR 3307. In that decision, the U.S. Supreme Court decided that the Constitution's First Amendment mandated that a religious group be allowed to turn the funeral into a tumultuous media event and revile Snyder's family on the Internet, as part of their concerted effort to gain national publicity for their belief that God hates and punishes the United States for its tolerance of homosexuality, and that the Roman Catholic Church is "the largest pedophile machine in the history of the entire world." In doing so, the Court reversed a jury verdict in favor of Snyder's father for intentional infliction of emotional distress.

This religious group has picketed nearly 600 funerals, and Justice Samuel A. Alito Jr.'s dissent points out that their tactics are part of their scheme to gain publicity. He notes that they have more recently succeeded in getting radio stations to grant them air time to express their views, in exchange for a promise not to picket the funerals of the young girl and federal judge who were recently killed in Arizona, and in 2006 they got a similar concession by cancelling their plan to picket the funeral of five Amish girls who were killed by a crazed gunman.

While admitting that: "The record makes it clear that the applicable legal term - 'emotional distress' - fails to capture fully the anguish [the religious group's actions] added to Mr. Snyder's already incalculable grief," the Supreme Court's majority held that, because the group's message involved matters of public concern, the state law verdict for intentional infliction of emotional distress could not stand. Many of the cases the majority cites involved public figures, suggesting that they believe Snyder is a public figure. See Gertz v. Welch Inc., 418 U.S. 323, 344 (1974) "[P]rivate individuals are...more vulnerable to injury, and the state interest in protecting them is correspondingly greater." Justice Alito and the trial judge found that the Snyders are not public figures, and in other cases the Court has found that neither a party to a notorious divorce, a convicted criminal, nor an applicant for public funds is a public figure. On the other hand, lower federal courts have held that police officers, government employees, attorneys, school teachers, football players, and even belly dancers can be public figures. See 32 Cumberland L. Rev. 519, 534-535 (2002). Are our fallen soldiers and their families now to be relegated to that status, and thus, subject to this kind of public abuse?

Some of the materials cited in the footnotes to Justice Alito's dissent point out that when the religious group recently announced that it would picket the funerals of the girl and federal judge who died in the Arizona shootings, many local citizens pledged to form a human barrier between the protesters and those attending the funeral, and that local police were, understandably, concerned about public safety. This would suggest that the religious group's over-all tactics are analogous to "fighting words," which are not protected by the First Amendment, but the majority concluded otherwise. See Chapinsky v. State of New Hampshire, 315 U.S. 568, 571-572 (1942) "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problems. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace....' Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution....'"

One glimmer of hope in the majority's opinion is its reference to state laws that can properly regulate the "time, place or manner" of speech, as long as that regulation is "content neutral." In Arizona, the Legislature recently passed such a law in an effort to prevent the disruption of the funerals resulting from the shootings in Tucson. These cases of actual and threatened disruption of funerals suggest that the Court should, while giving effect to valid First Amendment concerns, also give state legislatures, and possibly Congress, great latitude in fashioning laws that protect those who have given their lives for our country, and those who perform other valuable and necessary public service, from the kind of abusive tactics at issue here.

The Court should heed the rule that says, when there are different ways to address underlying constitutional concerns, "it is more in keeping with our status as a court, and particularly with our status as a court in a federal system, to avoid imposing a single solution on the States from the top down. We should, and do, evaluate state procedures one at a time, as they come before us..., while leaving 'the more challenging task of crafting appropriate procedures...to the laboratory of the States in the first instance.'" Smith v. Robbins, 528 U.S. 259, 275 (2000). See also Dickerson v. United States, 530 U.S. 439, 440 (2000); Coleman v. MacLennan, 98 P. 281, 288 (Kan. 1908), quoted in New York Times. v. Sullivan, 376 U.S. 254, 280-283 (1964).