I served in Iraq for a year and devoted 28 years of my life (mostly part-time as a Reservist) to the military. So, seeing signs like "Thank God for Dead Soldiers" at a funeral for a dead soldier angers me beyond belief. See news report. I cannot understand a church that openly, proudly protests at many, many funerals for service members killed in the two wars. I practice civil rights law, so have some understanding of civil rights. The First Amendment is a critical part of our laws and heritage.
The First Amendment has rarely been limited. The most well known limitation came in a 1919 case, Schenk v. United States, in which Justice Oliver Wendell Holmes said that falsely yelling fire in a crowded theater was not protected speech. See court opinion. Justice Holmes offered this as an example of speech that would not protected by the 1st Amendment.
This Westboro Baptist church case will be very difficult for the Supreme Court to decide. Albert Snyder, the father of the slain soldier, Michael Snyder, rightly points out that this church took away his right to a private, mournful funeral. Even though, the funeral procession was guided away from the protesters and the protesters were done by the time the funeral started, the father became aware of the protest within a month when he was researching his son’s death on the internet. He sued the church for intentional infliction of emotional distress and was eventually awarded $5 million in damages. The court of appeals overturned the verdict saying the church was exercising its right to free expression.
Now, the appeal is before the US Supreme Court. In oral arguments today, the justices indicated they were having trouble with this case. What are the limits of free speech? Free speech cannot be based on popularity. There is no need for a government protection for popular speech. It is the unpopular speech that needs protection.
The Schenk decision indicated that one limit would be public harm. Free speech should not extend to speech which causes panic and endangers lives. It seems to me that some speech can be so provocative that it endangers lives. But, I am told by those more learned in First Amendment cases that the Supreme Court has already rejected that attempt to limit free speech. Recall the case concerning the Neo-Nazis who appealed and won their right to march in a Jewish neighborhood in Chicago. Their march was also likely to provoke violence, but the Supreme Court, I am told, rejected that argument.
I am sure the tiny Westboro Baptist church is concerned for their own safety. They may be the most unpopular church in America. In this case, I have to speak more as a former soldier. If they picketed the funeral of one of my soldiers, I would not wait for any lawsuit to take appropriate action.