Supreme Court Weighs Military Funeral Protests: Are They Free Speech?

ABC News: Do members of the controversial Westboro Baptist Church have a constitutionally protected right to protest at the funerals of members of the military?
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Albert Snyder sued for emotional distress and an invasion of his family's privacy, winning $5 million before the ruling was overturned by a federal appeals court. The court said that Westboro's protest was "rhetorical hyperbole" protected by the First Amendment.

Common sense is challenging here.

On one hand the first amendment is not an absolute right.  You can not, for example, scream fire in a crowded theater and then claim immunity for the foreseeable injuries as patrons flee.  Certainly the Westboro Baptist Church could reasonably foresee that one consequence of their actions would be emotional distress on the part of the deal solder's family.  It might even be argued that that was their intent.  But is this an injury in the sense of the theater example?  Is emotional devastation an injury that limits free speech during the conduct of a funeral? Does the integrity of a funeral, particularly the funeral for a fallen soldier trump free speech during the conduct of the funeral?  While it is certainly true that the conduct of the Westboro Baptist Church is extremely offensive, is it actionable?  What redress, if any, does Mr Snyder have?

Common sense suggests that as offensive as the church's action is that action is in fact protected in much the same way as name calling is permissible no matter it's offensiveness. Anti abortion groups are often enjoined from protesting, a free speech activity, within a certain distance of abortion clinics.  Likewise, adult establishments are often excluded near schools and other venues.  Common sense suggests that it is reasonable that the Westboro Baptist Church be treated similarly with respect to their protests.

Oct 6, 2010
David G. Savage, Tribune Washington Bureau

October 6, 2010

At issue Wednesday was whether the Maryland father of a Marine killed in Iraq could sue a Kansas family which protested near his funeral. The Phelps family not only held signs that said "Thank God for IEDs," but they also put on their website a message that accused Albert Snyder of having raised his son "to defy the Creator" and "serve the devil."

I clearly misunderstood the issue before the court.  If the issue is not can the church demonstrate but rather can they be sued, then, of course, they can.  As the courts questioning suggests, torts are often committed with words and words are indeed actionable.  Common sense and existing case law clearly hold so.  Being a church does NOT immunize one nor does free speech.