Mourning Roundup: October 7, 2010

OCTOBER 7, 2010 TAGS: LAW, FUNERALS ADD A COMMENT

Funerals, Obituaries and Privacy

What does it take to piss off the Supreme Court? For certain Justices, not much. But to get nine (well, eight) monastic jurists wringing their robes in discomfort may we suggest protesting a dead soldier’s funeral.

Though some Supreme Court observers predicted that Snyder v. Phelps, the case of a dead soldier’s family suing a “little church” in Kansas for intentionally inflicting emotional distress while protesting 1000 feet away from the soldier’s funeral, would be decided in quick fashion following the Court’s First Amendment precedents, by the end of oral arguments yesterday, the Court and observers were left with more questions than answers.

Supreme Court Phelps

For instance: Justices attempted to parse the meaning of one of the tamer signs held up by the Westboro parishioners. “God Hates You?” Does “you” refer to Lance Cpl Matthew Snyder, who was killed in Iraq in 2006, his father Albert Snyder, the petitioner in this case or just a general “you” referring to the world at large?

According to Phelps’ brief, it doesn’t much matter because the “type of words” presented in their signs (which also includes the efficient claim, “God Hates Fags”)

“are hyperbolic, figurative, loose, hysterical opinion. By their content, form and context, no reasonable reader could conclude they contain provable facts."

So whatever “you” may mean, it certainly doesn’t intentionally inflict emotional distress upon its referent, because the claim itself is laughable.

Let’s just make sure we understand that this brief was filed by a member of the church that protested the funeral. They argue that the factual vacuity of their signage is a reason that their speech is protected.

Which is to say, if God actually hated Matthew Snyder, then the Phelps’ speech would not be protected? Right? Or no, because how can the First Amendment allow for actual facts to be suppressed? Oh boy.

Let the circus begin.

For our purposes, two lines of questioning from the Justices are worth examining.

1) Does placing an obituary with a funeral services listed mean that the service is public?

2) Is this case really about funerals, at all?

We’ll take the second question first. While the Justices seem to think that the nature of speech and whether it is protected is independent of the fact that it took place at funeral, (JUSTICE BREYER: I'm not certain that this is about the funeral. I mean, understand there was a funeral in it, but the First Amendment question seems to me a different, possibly a broader and different question.) both sides indicate that the funeral is a special space. For the Snyders, it’s private and entitles them to grieve without disturbance. For the Phelps, a funeral is a public event, viewed and attended by many, and open to issues of public discourse (like whether or not God indeed hates fags).

The question regarding the obituary placing is a bit of a red herring. The obituary is not the sole reason Matthew Snyder is a public figure. Justice Alito asked the Phelps’ attorney (who happens to be a Phelps herself) whether it’s the placing of the obituary that makes a private person into a public figure. To which the attorney responded:

“It's not the obituary notice, Mr. Chief Justice, he went far beyond that.” She’s referring to the public comments that Matthew Snyder made before his sons funeral.

So much is lost in the wash in this case. We might turn to two commentators that do well to understand how strange a spectacle this entire business is.

To Garrett Epps at The Atlantic, the attorneys were inept:

Two inexperienced pilots sailed into a legal Bermuda Triangle, where the compasses no longer pointed to magnetic North...

The result [was] a halting hour of argument that sometimes resembles the 1945 World Series, between two teams so war-depleted that sportswriter Warren Brown said, "I don't think either one of them can win it."

Dahlia Lithwick at Slate blames aggravated Justices:

If the old saying—that bad facts make bad law—is true, it's arguably even more true that pissed off jurists (and bad oral advocates) make for very bad precedent.

Inflamed passions, poor lawyering and the bad taste lingering in everyone’s mouth might result in a legal definition of private grief. We’ll probably predict a raft of opinions in this case, ultimately upholding the decision of the Appeals Court, but offering commentary on the public/private nature of death, dying, funerals and obituaries. This is indeed a unique case. After all, in the dubious words of ABC News, no one in American history has ever protested a funeral. Can that really be true?

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(Kudos to Lithwick for titling her piece, "Up in their Grill," a colloquialism that, due to the efforts of the Phelps family attorney, possibly made its Supreme Court debut.)