Anti-gay minister shouldn't be able to intrude on soldiers' funerals

(Astrid Riecken/for The Washington Post)
By Doug Gansler
Wednesday, October 6, 2010

Today the U.S. Supreme Court will hear arguments in Snyder v. Phelps, a case about the nature and scope of basic rights -- those of free speech vs. those of privacy. But this case is fundamentally about wrongs and the law's imperfect ability to redress them.

The facts of the case are well known. Matthew Snyder, a Marine lance corporal from Westminster, Md., was killed in the line of duty in Iraq in 2006. The Rev. Fred Phelps and members of his Kansas-based Westboro Baptist Church traveled more than 1,000 miles to Maryland to picket his funeral and draw attention to their view that society and the military are too tolerant of homosexuality. They stood at the entrance of the church where the funeral was held, waving signs that said "Thank God for Dead Soldiers," "God Hates Fags" and "God Hates You."

They followed their protest by publishing a poem on the Internet entitled "The Burden of Marine Lance Cpl. Matthew Snyder," which stated that Matthew's parents "taught Matthew to defy his creator" and "raised him for the devil." The connection between the Phelpses' faith and their political views may be difficult to understand, but it is not difficult to see how this targeted expression of their views would be particularly hurtful to Matthew's father on the occasion of his son's funeral.

Indeed, a Maryland jury found that while the Phelpses may have a general right to broadcast their hate, their intrusion on Cpl. Snyder's funeral nevertheless constituted a wrong. The jury found that Phelps and his followers, through their disruptive picketing and public insult of the Snyder family at a time of grief, had engaged in conduct that was extreme, outrageous and designed to inflict severe emotional distress on Mr. Snyder -- distress that included worsened diabetes and depression. For this injury and for the invasion of Mr. Snyder's privacy during the funeral, the jury awarded him monetary damages, but the damage was done. While the Phelpses can express their hate in numerous ways at numerous times, Mr. Snyder could only bury his son at one moment, and the Phelpses used their speech to destroy that moment. Eventually, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond overturned the damages award, and Mr. Snyder's attorney appealed to the Supreme Court.

Unfortunately, hate has become easier to spread in the Internet age, and the law cannot provide an easy remedy. The tragic suicide of Rutgers student Tyler Clementi is a poignant example. Two students allegedly broadcast his most private encounter and used that intrusion as a means of disseminating their intolerance. That act led him to take his own life, and while criminal charges against the two students may provide some justice to Clementi's family, it does not change the fact that he is dead. That wrong, like the wrong suffered by Matthew Snyder's father, can never be undone.

Most Americans, myself included, believe in the First Amendment's vital role in our democracy and are willing to tolerate noxious expressions of free speech in its defense. But even if this right allows one to spread hate through speech, it does not alter the wrongfulness of targeting a particular individual with that speech, whether by intentionally inflicting emotional distress on a grieving parent or by criminally invading a person's privacy during his most intimate moments.

My office will continue to use whatever tools are at its disposal to seek justice for those citizens whose privacy is ruined by others' attempts to spread hate at their victims' expense. That is why, in Snyder v. Phelps, I joined attorneys general from 47 states and the District to argue that the right to free speech must be limited where the speech is targeted at individuals during moments as private as a funeral. Ultimately, the Snyder case shows that one group's exercise of rights can have potentially harmful consequences for another's, and no matter what the court decides in this case, those consequences can never be fully avoided.

The Constitution creates an impressive framework of rights that should be robustly defended. But these rights were created by the people, for the people, and when they are invoked to evade responsibility for wrongs committed against the people, their value is diminished. In deciding Snyder, the Supreme Court should be careful not to let the boundaries of our rights be set purely by those who wish to abuse them. To do otherwise would bring dishonor to those, like Lance Cpl. Matthew Snyder, who fought to protect them.

The writer is attorney general of Maryland.

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