Will The First Amendment Get A Funeral Exception?

The Supreme Court is off and running, hearing oral arguments in several interesting cases this week. By far and away, however, the most controversial is the dispute between the family of a soldier killed in Iraq and the Westboro Baptist Church,

The Supreme Court is off and running, hearing oral arguments in several interesting cases this week. By far and away, however, the most controversial is the dispute between the family of a soldier killed in Iraq and the Westboro Baptist Church, who came to his funeral with picket signs.

The Phelps family contends that while "99% of Americans see this boy as a hero", he's really paying for the sins of a country that supports same sex marriage and other "sins". In their eyes, the US (and deaths of US troops in Iraq and Afghanistan) represent God's retribution for being a "godless country". In addition to their presence at the funeral, they published a video they called the "epic" on the Internet.

The soldier's father, Al Snyder, sued them for $5 million and won, but the case was reversed on appeal. Mr. Snyder was ordered to pay all of Westboro's court costs, adding deep insult to deeper injury.

During oral argument, the justices were concerned with trying to draw a line between fighting words and protected speech. From the transcript: (PDF)

JUSTICE KAGAN: Ms. Phelps, suppose --suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day.
Does that person not have a claim for intentional infliction of emotional distress?
MS. PHELPS: Any non-speech activity, like stalking, following, importuning, being confrontational, could indeed give rise to a cause of action.
JUSTICE KAGAN: Demonstrations outside the person's home, outside the person's workplace, outside the person's church -- demonstrations, not disruptions, but saying these kinds of things: You are a war criminal -- what -- what would -- whatever these signs say or worse.
MS. PHELPS: My answer, Justice Kagan, is no, I don't believe that that person should have a cause of action or would under your cases have a cause of action. You couldn't give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case. And --
JUSTICE SCALIA: My goodness. We -- we did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.
MS. PHELPS: We agree that fighting words are less protected under the First Amendment.
JUSTICE SCALIA: Unprotected.
MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social speech.
JUSTICE SCALIA: Is -- is that so? Do we know that?

MS. PHELPS: I beg your pardon?

Further complicating things, neither side really did a particularly good job with their arguments, but Mr. Snyder's attorney was clearly the weaker of the two. It seemed to me, anyway, that he was not really listening for what the justices were asking, even when their questions were friendly and offered as a way to assist him in the formation of a cogent argument.

After listening to the arguments and reading the transcript, I have the sense that the court will rule against Mr. Snyder, reluctantly. I can't see this court creating a new type of protected speech around funerals. I've posted the audio of the oral arguments below. What's your take?

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Also, see Chris Geidner's excellent analysis and backgrounder.

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