Does Free Speech Need a Funeral Exception?

The Supreme Court will hear the funeral picketing case, Snyder v. Phelps, early next term.  The case involves an organization led by Fred Phelps that pickets the funerals of American soldiers with signs such as “God Hates Fags,” “Thank God for 9/11″, and “Thank God for Dead Soldiers.”  The organization believes that God is punishing the United States for its toleration of homosexuality.

The trial court awarded Mark Snyder — the father of a dead soldier whose funeral was picketed by the organization — a five million dollar verdict for intentional infliction of emotional distress and invasion of privacy.  But the U.S. Court of Appeals for the Fourth Circuit reversed, holding that this activity is constitutionally protected speech under the First Amendment.

Eugene Volokh believes that the Court of Appeals was right:

[A]t least where speech on matters of public concern is involved, the First Amendment precludes liability based on “statements on matters of public concern that fail to contain a ‘provably false factual connotation’”. This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within “one of the categorical exclusions from First Amendment protection, such as those for obscenity or “fighting words’” it might be actionable. But if it’s outside those exceptions, then it can’t form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it’s “offensive and shocking,” or whether it constitutes “intentional, reckless, or extreme and outrageous conduct causing … severe emotional distress”.

Professor Volokh also notes that ruling in favor of Mr. Snyder would create a real slippery slope problem that would erode free speech protections in other contexts.  In particular, he gives the following hypothetical scenario that he says might very well be permitted as a result of ruling in favor of soldier’s father:

The University of Maryland decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons. The University disciplines for violating some sort of rule that bars the creation of a “hostile educational environment” for various religious groups, or for that matter a rule that bars “conduct or speech that is outrageous, and that intentionally or recklessly inflicts severe emotional distress on some students.”

Professor Volokh specifically asks us whether we would be confident that judges would in fact distinguish these two scenarios or instead defer to university administrators in the wake of a ruling against the Phelps organization.  To be clear, I certainly believe that at the core of the First Amendment is the notion that speech must be tolerated even if the majority of society finds such speech abhorrent.  If abhorrent speech were not tolerated then the First Amendment would quickly become a nullity.  But I never found slippery slope arguments of the sort hypothesized by Professor Volokh very convincing.  While I’m not sure if judges would rule in favor of university administrators in such a manner, my belief is that they should not.  Funerals and educational settings are entirely different and distinguishable.  Free speech on university campuses is vital to the “marketplace of ideas” theory.  Where else are diverse viewpoints more important than higher educational settings?  But a funeral is no such marketplace.  Rather, funerals are perhaps the most solemn of human events and are immensely personal to the families involved.  They certainly aren’t public and do not carry nearly the same interest of fostering diverse viewpoints as a university campus.  Considering the context, I can’t help but think it provides ample room for distinguishing future speech-restricting scenarios and thus not make it the slippery slope that Professor Volokh fears.  It also provides some justification for an explicit funeral exception to the First Amendment.