Beyond Snyder v. Phelps: Free Speech and Funeral Picketing Laws

Abstract

Reverend Fred W. Phelps, Sr. and the members of his Westboro Baptist Church of Topeka, Kansas, are “fire and brimstone” fundamentalists who believe that God hates all homosexuals. Because of our national toleration of homosexuality, Phelps and his followers believe God is punishing the United States, particularly U.S. military forces. The Westboro Baptist Church has voiced this position on the church’s web site and during protests at funerals held for prominent people and for United States servicemen killed in Iraq and Afghanistan. As a direct result of these activities, the federal government and 45 states have adopted laws that restrict or prohibit protests at funeral services or internment ceremonies. “The scope of state activity,” Stephen R. McAllister observes, “speaks volumes about the American public’s reaction to the funeral picketers” (579). The Supreme Court did not rule on the constitutionality of funeral picketing laws in Snyder v. Phelps. This case, brought by a distraught father named Albert Snyder, involved a lawsuit filed under Maryland law alleging intrusion on seclusion, intentional infliction of emotional distress, and civil conspiracy. In an 8-to-1 decision, the Supreme Court ruled in favor of Phelps, holding that the First Amendment shielded the picketers from tort liability because of the political nature of the issues that their protest raised (1216-1217). Since Maryland did not have a law against picketing at funerals when the Westboro Baptist Church protested at the funeral of Lance Corporal Matthew Snyder, the Justices had “no occasion to consider” whether such a law would be a reasonable time, place, or manner restriction under standards previously announced by the Court (1218). Because Snyder’s civil suit ultimately failed, these picketing laws take on new significance because they may offer the best means for federal, state, and local authorities to limit the expressive activities of Reverend Phelps and his followers. This analysis briefly considers whether such statutes unconstitutionally restrict freedom of speech guaranteed by the First Amendment.