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Freedom of Speech or Right to Privacy: Which is Superior?

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Imagine your son or daughter volunteers for military service. Then imagine, he or she is deployed oversees to fight for our country. Next imagine that he or she dies in the call of duty for our country in Iraq. Next, imagine grieving the loss of your child to war. Now, imagine that you attend the funeral of your child where members of an out-of-town religious sect protest, chant, yell and cause a circus atmosphere at the funeral of your child. Those protestors shout that God is mad at us for the war and many other things having nothing to do with your son and shout the killing of your child is justified. Does the Constitution protect this protest and speech under free speech? Are the grounds of a funeral exempt from this type of behavior and speech? That's exactly what happened in the case of Snyder v. Phelps.

The case of Snyder v. Phelps stems from a 2006 funeral in Westminster, MD where protests by the Phelps' Topeka, Kansas Westboro Baptist Church during the funeral of Marine Matthew Snyder turned it into a circus atmosphere. According to Albert Snyder, it took the last good memory of his son from his family. The Phelps family church previously protested the funerals of 200 soldiers. Allegedly, they protested the Snyder funeral because the family is Catholic. The church claims US war deaths are God's punishment for abortion and gay rights. The Westboro Baptist Church is certainly an unorthodox church. Only family members are allowed to attend services. Fewer than 20 persons attend. Doors are locked to all outsiders.

A jury in Baltimore, after hearing all the facts, awarded the family the sum of $10 million for invasion of their privacy and emotional distress caused by the protests. The trial court cut the verdict in half. The Westboro Baptist Church appealed to the 4th Circuit court in Richmond, VA which overturned the verdict as protected by the First Amendment and freedom of speech. Now, it's the Supreme Court's turn to decide the case. What will the Court decide? On Wednesday morning, October 6, 2010, the Supreme Court heard arguments in this very interesting case which shows fact is stranger than fiction.

Protestors showed up outside for the oral argument before the Supreme Court bearing signs reading, Thank God for Dead Soldiers, Thank God for Breast Cancer and Thank God for Hitler, to name a few. One issue is whether the First Amendment and free speech is absolute and superior to the Snyder family's right to privacy in the burial of their son. The Snyders argue that, at least, some type of balancing analysis should be applied to exempt funerals. After all, funerals are like the sanctity of a home. There is no place to run or hide. Several groups have weighed in on the arguments. Some media outlets, including the AP, are siding with Phelps' Westboro church saying that freedom of speech needs to be upheld. Veterans groups, forty states and the federal government support the Snyder family. Forty states and the federal government have filed amicus briefs in support of the Snyder family's right to privacy in the burial of their son. States and the federal government have passed laws that govern and limit the time, place and manner of protests around funerals. They argue that funerals should be given greater status in reviewing free speech arguments.

Free speech covers the burning of the flag, pornography and the September 11th proposed Koran burning. Free speech covers freedom of expressions including protests and signs; however, offensive and insensitive, they may appear to outsiders.

This case is one of the first ones that new Justice Elena Kagan will hear. As former Solicitor General, she recused herself from many cases. Of the 9 justices, 6 are Catholic. Will the religious background of the justices play a role in the decision? It should not play any role. All justices and judges take an oath to be impartial. That includes their religious ideas and beliefs. Whichever way the court rules, it will probably be a close decision.

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The oral arguments before the court will be on the Supreme Court's website @ on Friday, October 8. It will be one of the most important decisions on first amendment and free speech rights in a long time. A decision is not expected for a while.

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Washington DC based Debbie Hines is a lawyer, former prosecutor and legal/political commentator. She frequently appears on television commenting on gender and race issues in law and politics. As an ivy league educated woman of color, she speaks (more...)

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