I would like to cheer Wednesday’s decision finding that an extremist Kansas church whose members violated the privacy of the family of a soldier killed in Iraq by waving anti-gay signs during a protest at the funeral in 2006. But I can’t.
The ruling by the federal jury in Baltimore awards nearly $11 million to Albert Snyder, father of Lance Cpl. Matthew Snyder who died in a “vehicle accident in Anbar province in March 2006” less than a month after being deployed.
My a concerns about the decision stem from the conflict between two constitutional principles — privacy and free speech.
Westboro Baptist Church, a fundamentalist Christian group based in Topeka, has been protesting at military funerals across the country, saying that the soldiers’ deaths were punishment for homosexuality and for allowing gays to serve in the military. It is a bigoted message that is being touted by church members using a particularly reprehensible method.
Family members, like the Snyders, view the protests as an intrusion into their grief. I can understand their arguments: They are not public figures, after all, and they believe they have a reasonable right to be left alone in their grief.
But there is another issue on the table here, one that trumps the privacy concerns:
Some legal experts said the judgment could be a setback for those who believe in broad free-speech protections.
“I think when speech is a matter of public concern it still has to be protected, even when by social standards it is extraordinarily rude and outrageous,” said UCLA law professor Eugene Volokh.
University of Maryland law professor Mark Graber said the size of award, which included $8 million in punitive damages, could have a chilling effect on speech.
“This was in a public space,” Graber said “While the actions are reprehensible, the First Amendment protects a lot that’s reprehensible.”
The operative phrase, for me, is “chilling effect on speech.” Rhymes with Right, a conservative blog, offers a fairly cogent summary of what this suit ultimate was about (The Opinionator at The New York Times offers a solid overview of the differing opinions on this):
So let’s be clear about the goal of this suit — it was to punish speech conducted in a public place, speech that is fully protected by the Constitution, on the grounds that it is hurtful, offensive, and outrageous. That troubles me very deeply, and it is my profound hope that the decision is thrown out on appeal as incompatible with the First Amendment.
Pam’s House Blend, a liberal blog, offers this:
I have doubts that this will hold up; the question is whether picketing outside a funeral is free speech, and I can’t see how it isn’t — the hatemongers have a right to picket if they are in a public space.
This probably sums up my feelings on this. What Westboro has to say is pretty vial and definitely out of the mainstream. But the First Amendment, if it is to remain relevant, must protect the vial and marginalized, and not just popular public opinion.
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Hank Kalet 