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Free Speech is Superior to a Family's Right to Privacy

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In a shocking 8-1 opinion, the Supreme Court ruled that the outrageous conduct of the Westboro Baptist Church, protesting at a deceased soldier's funeral, was constitutionally protected by the first amendment.    Only Justice Alito dissented from the majority.   The opinion was shocking in that all but one of the nine justices agreed.   This rarely happens.   Yet, this shows the strength of the beliefs attached to the opinion.  

The Westboro Baptist church has been picketing and carrying signs against homosexuality for many years.   In 2006, they took their horse and pony show to Westminster, MD to picket the funeral of Marine Lance Corporal Mathew Snyder, who was killed in the line of duty in Iraq.   They carried signs that said, among others, "Thank God for dead soldiers." They picketed 1000 feet away from the funeral for 30 minutes before and after it.   According to the father of the deceased, they destroyed his last good memory of his son. But, Mr. Snyder didn't actually see any of the words of the signs. He only heard or saw it on television after the service was concluded. He did, however, see the protestors but only the tops of the signs. The protestors complied with all local ordinances to protest.

Almost all 50 states joined in support of Mr. Snyder and his family's right to privacy.   48 states and dozens of members of Congress sided with the Snyder family.   It was something that could be agreed on in a non-partisan manner. Yet, the Supreme Court almost unanimously agreed with the protestors, although acknowledging the brutalization of the victims, the Snyder family. So what did the Supreme Court make of all of this drama? For however shocking the signs may be at the funeral, they were not personal in nature.   Meaning, they were not directed at Lance Corporal Snyder or his family. They were simply put, political protests.   And these types of protests which are public and political in nature versus individually directed are afforded the highest and full first amendment rights.

Now, there are limits to free speech. Justice Roberts, speaking for the majority, made clear that this decision is solely limited to the specific facts of this particular or peculiar case.   Free speech has been limited depending on whether it was on private property such as a private home or an abortion clinic. Free speech on public issues and on public grounds presumably applies to the outrageous, non-threatening signs seen at rallies against lawmakers and even President Obama and the recent anti-abortion billboard signs aimed at the African American community.

The Supreme Court said it best:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and--as it did here--inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.   It is so Ordered."


Although, in recent days, it may appear that the clock is being turned back on many rights, free speech still reigns. The first amendment and right to address political and public issues, although sometimes quite harmful, is what separates our society and democracy from other forms of government. Free speech, on these issues, ensures that public debate is not stifled.   And that is the essence of our government, a democracy.

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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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