UPDATE: Prompted by a comment, and having now perused the full text of the decision, I’ve changed my mind on this case somewhat. WBC was protected because it was well back from the funeral (1,000 feet), out of sight of the church, and “there was no shouting, profanity or violence” – and its attack was on public matters (although at least some material published online targeted the Snyders directly). Had it been the Snyder residence, for example, the Court would probably have found as in Frisby. Or if it were preventing people from attending (eg outside an abortion clinic) as in Madsen. The “captive audience doctrine” did not apply because the facts were that “Snyder could see no more than the tops of the signs when driving to the funeral”.
Given those factors, the decision seems consistent and not unreasonable.
That said, Alito’s dissent is also worth reading.
To begin, I don’t agree with the US Supreme Court that “free speech” protections should include a “right” to harass and intimidate. In the real world there should be – and, for people like the Supreme Court justices, are – obvious limits. I suspect that if I were to stand on a public street next to a Supreme Court judge’s house and loudly broadcast abuse at him and his family over the fence at three in the morning, the police would arrive and promptly take me away. Even though I was technically on “public property”.
Likewise, whilst the Westboro Baptist Church nutcases should be entitled to argue what they like in public, harassment of private citizens crosses the line from where courts should place their victims’ privacy rights above their free speech rights.
I think the decision in Snyder v Phelps is a terrible precedent, and entirely inconsistent with the rights of ordinary citizens (ie, citizens who are not Supreme Court justices and granted special protection by the state) to not be bullied by aggressive, hysterical thugs.
One interesting effect of this decision, as Fred Clark points out, is that it is a bit of an own-goal for the homophobes. One of their biggest arguments against marriage equality is that it is somehow going to take away their rights to free speech – their “right” to defame and abuse homosexual people from the pulpit. They conjure terrifying scenarios of priests sued and prosecuted for simply teaching their religion’s most deeply-held beliefs – that gay people should be hounded by their flock.
But this decision affirms that such a fear is utterly unfounded. The Supreme Court has defended the bigots’ “right” to abuse not just gay people, and not just from their pulpits – but at their funerals. At the funerals of ordinary citizens who are just insufficiently anti-gay for the fundamentalists’ liking.
Like Fred, I suspect that won’t actually stop the nutters making the argument: they’ve long since resolved to say whatever they think will build support, regardless of whether it is true or plausible or in any way rational. They have no shame. But it’s worth everyone else realising how hollow the claim is.
Moved On 
I’m going to defend SCOTUS here. I don’t think the analogies you’re drawing (such as to broadcasting abuse at 3 AM) have much bearing on the actual facts of this case. The WBC nutbags aren’t loudly harassing people at the funeral itself. They’re picketing a fair distance away, in a public space. They’re not audible from the funerals – their signs can be kinda visible, at certain times, depending on the angle you’re viewing from. They don’t intimidate in any direct sense – they don’t threaten violence (except of the abstract God is going to curse ye unto the 7th generation kind), and they don’t launch sustained campaigns targeted to specific individuals; each protest, including the Snyder one, is basically a one-off publicity stunt designed to give Phelps more of a national platform for his insane breed of religious hatred.
Now Snyder’s pain is real, serious, and awful. However, apparently by his own admission he didn’t really directly observe any of the nastiness until he looked at media reports of the event afterwards. So if the exact same protest over the funeral taken place 300km away, which I doubt you’d be able to plausibly object to on any “harassment” grounds, if journalists had still chosen to cover it he’d have suffered about the same level of harm.
The decision is much more of an own goal for homophobes in that Phelps and the rest do the whole anti-gay cause a massive disservice in public opinion. They throw into stark relief the realistic endpoint of signing up to a literal reading of the kind of scriptural passages cited against gay marriage; if “moderate” homophobes pay attention to them it should help throw the absurdities of their own beliefs.
If a single Republican voting, Rush Limbaugh listening person wonders why the fuck Phelps thinks God hates Amercian marines killed in Iraq, and actually opens up their Bible and reads the tale of Sodom and Gomorrah and Deuteronomy and all the rest, and says to herself “Phelps interpretation really isn’t especially far-fetched. Wow. I can’t live my life by the values embodied in every part of this book”, that’s a triumph for gay rights and a whole lot of other important causes too. So thank God (if she exists) and the US first amendment for Fred Phelps, so clearly falsifying the idea that Biblical morality is perfect and must be obeyed absolutely.
Think of the positives, the more they spew their religious conservative bile the more damage they do to themselves.
I hate Illinois Nazis.
Surely one can arrive at such a position without having to put up with the likes of Phelps?
I don’t need to live through a war to understand that peace is preferable.
Nor do I need to be subjected to extreme examples of bigotry to know that all bigotry is to be eschewed.
The champions of absolute free speech will tell us that everybody, including Phelps, should have the opportunity to say exactly what they wish and to deny them that opportunity would bring about the abrogation of all free speech.
Of course, that’s absolute rubbish. We’re mature enough as a society to decide when somebody is talking shit and should shut the fuck up, especially when that talk is hateful or likely to incite violence.
Cheers
I’ve changed my mind, partly as a result of Jordan’s comment and partly from now reading the full judgment.
Update to post.
Good update, Jeremy.
Marek: “We’re mature enough as a society to decide when somebody is talking shit and should shut the fuck up”
This arrogant attitude is precisely why we need to have free speech strongly entrenched in our laws. The last thing we need is to have the intellectual elite (or anyone else for that matter) decide when someone else is talking shit.
Bollocks SB.
I didn’t mention “intellectual elites”, so don’t worry, you won’t be left out of the equation.
I said society.
I’ll wager there is not one person in the USA, outside of the handful of Westboro Baptist Church members, who would consider this idiocy worth protecting. Yet bedwetters like you will think the sky is falling in if lothesome pricks like that are denied their soapbox.
Got any kids, SB?
How would you feel if you had to bury one of your children and knew that some group of miscreants are celebrating your childs death?
Would you go up to them and express your pleasure at being able to hear the free expression of their point of view?
Would you really?
Cheers
There’s a difference between “free speech” and using language that has no other purpose other than to provoke an emotional response in someone.
What good does that serve SB?
Errr, I think WordPress swallowed my comment from a little while earlier?
Cross out “no other purpose” (which is demonstrably false in this case.) There’s still a difference, of course – he latter is the subset of the former.
See Ginsberg’s Howl for a well demonstrated instance of Free Speech successfully designed to provoke (largely adverse) emotional responses in most people, and rightly protected by the U.S. First Amendment.
SB’s emotional fortitude to stick to his principles in the face of extremely challenging circumstances don’t necessarily say a lot about the principles themselves. But give me a sec and I’ll dredge up a link as a counterexample to your emotive attack on one of the most valuable ideals ever instituted in a liberal democracy.
Sadly I couldn’t find the link to one of the parents expressing the sentiment….. but at least one person in the USA is a little inaccurate:
http://www.foxnews.com/story/0,2933,252747,00.html
And I quote:
I.e. a Military veteran who turns up on motorbike to soliders funerals to shield mourners from the WBC seem kind of keen on protecting their idiocy.
Here’s another.
Any maybe you should check out the immense dignity of (gay, Jewish, Democrat congressman) Barney Frank’s response to the woman calling him and Obama Nazis for the health care plan (from a town hall meeting, and not hard to find on YouTube.)
Americans – Democrat, Republican, left, right, soldiers, politicans, judges… to me they all actually seem kinda proud to live in a country where even a hateful insane bigot has the right to advocate a political or religious platform.
Yeah I should have said “particular emotional response”, then I could justify exactly what sort I meant.
“God hates Fags and the US is a Fag Nation thats why your kid died”
Is the particular message the Westboro jerks send. That sort of comment at a funeral is abuse. Thats why they don’t do it at the actual funerals tho.
Abusive language is a form of violence and people should be entitled to defend themselves from it. Preferably with baseball bats, blow torches and pliers.
It is an interesting debate because it begs the question of a society of rights versus a society with responsibilities – ie I have a right to freedom of speech and a right to not be subject to abuse; so which should be curtailed in order to balance the two rights? Particularly when the prioritisation of the balancing act itself is subjective…
Marek I have lots of kids, and I would be very upset knowing that someone was celebrating the death of any one of them. The thing is I don’t see why I should be protected from being upset. I’d probably be more upset if one of my kids participated in any protest like that.
I would certainly defend the right of protesters to protest even if I found the protest disgusting.
Jules: ”There’s a difference between “free speech” and using language that has no other purpose other than to provoke an emotional response in someone.”
So now you are going to ban jokes?
“God hates Fags and the US is a Fag Nation thats why your kid died”
That is grotesque, but it is not actually insulting the kid, is it?
“Abusive language is a form of violence and people should be entitled to defend themselves from it. Preferably with baseball bats, blow torches and pliers.”
We have laws about harassment and assault which are ample to deal with really bad stuff. Beyond that speech should not be criminalised. Sadly in Australia at least two people have been jailed for their speech in recent years. That is truly obscene.
Narcotic the right to freedom of speech is far, far more important than the right not to have your feelings hurt.
Just to be clear, I would never advocate people be jailed for their speech, no matter how vile.
Put in stocks while we thro rotten tomatoes at them – sure, but only for an arvo or two.
“Narcotic the right to freedom of speech is far, far more important than the right not to have your feelings hurt.”
I agree 100% – I was merely commenting that it is an interesting debate because the values are subjective thus things get distorted depending on whose feelings got hurt. I was not advocating curtailment of freedom of speech.
Narcotic: “I was not advocating curtailment of freedom of speech.”
Agreed. If someone holds beliefs so dearly that they are easily offended by the speech of others, that is their problem. They need to get over themselves.
Sadly the Universal Declaration of Human Rights is under threat in this regard by a concerted push for laws prohibiting the defamation of religion.
Obviously some societies prohibit categories of speech such as blasphemy and criticism of the regime. The consequence is that people are persecuted and, in many cases, killed for what they believe and say.
What is really, for lack of a better word, annoying is people, not party to something, being offended by it by proxy. So the actual target audience was ok about it, but someone else, desperate to find a reason to be offended, cries out “won’t someone please think of the [insert group that should’ve been offended but wasn’t]”