Free Speech vs. Privacy

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The freedom to spew hate can carry a heavy cost. Just ask Matthew Snyder's family. In 2006, Fred Phelps and members of his Kansas-based Westboro Baptist Church flew to Maryland to picket the funeral of the 20 year-old Marine killed in Iraq. Phelps' flock routinely demonstrates at the funerals of American soldiers, waving signs that say "God Hates Fags" and "Thank God for Dead Soldiers" -- all to spread the word that God is punishing us for tolerating gay people.

But Matthew's father sued and won a hefty jury verdict against Phelps' church for invasion of privacy and emotional distress.  An appeals court overturned the award, and the U.S. Supreme Court is now considering whether the church's free speech rights trump the Snyder family's privacy rights.

While the First Amendment plays a vital role in our democracy, it's hard to imagine it was meant to protect speech that is targeted at individuals in a setting as private as a funeral, whether the message is anti-gay, pro-gay or proudly on the fence. In fact, free speech has never been absolute in this country. The government generally can't ban speech based on its content, such as anti-abortion or abortion rights picketing, but the Supreme Court has made clear that the First Amendment doesn't protect speech intended to incite violence or panic -- and it doesn't protect picketing of people's homes, because of the important privacy interest at stake.

Similarly, school bullies and sexual harassers forfeit their free speech protection by following a person around and making her a target of their comments or insults. So it's really not much of a stretch to allow content-neutral limits on targeted picketing in front of private funerals.

Of course, even hate speech can have unintended benefits.  The twisted logic and sheer cruelty of Phelps' funeral protests -- which began with picketing funerals of gay people over 20 years ago -- has likely increased public sympathy for laws against anti-gay harassment. Still, it's a shame that Matthew Snyder's parents and other victims of hate have had to bear the painful cost of that lesson.


With a Perspective, I'm Clyde Wadsworth.