Last week, a federal jury in Maryland ordered the Westboro Baptist Church, its leader Fred Phelps, and several other church members, to pay $10.9 million in compensatory [$2.9 million] and punitive damages [$8 million] to Albert Snyder, the father of a Marine who was killed in Iraq. Snyder sued after the defendants displayed extremely offensive signs near the site of his son's funeral, and posted defamatory messages [the judge dismissed this aspect of the case] about him on their website.
-- Michael Dorf, "Does the First Amendment Protect Highly Offensive Speech at a Funeral and Directed at the Deceased?"
This judgment was handed down before Maryland passed a law against picketing funerals, so general common law principles and such would have to be used to justify the judgment. I simply do not know how one can do so. First off, where actually did they get that sum? The overall claim is one for reckless infliction of emotional distress for protests that involve such signs like "Thank God for Dead Soldiers" and "God Hates Fags." It is not rocket science to find that this is "highly offensive to a reasonable person," but so is marching down the street in a community filled with Holocaust survivors. That speech was deemed protected, however, and even there millions in damages was not the issue.
[Eugene Volokh has several posts about this judgment, including on damages. Recommended.]
A person can be suffer a serious physical or emotional injury from a negligent individual and not hope for a portion of such an award. The anguish a family must suffer from such crude protests, having to deal with the death of a son in the first place, is obvious. But, any number of people suffer from comparable crude speech, and get nothing. A woman who has a health problem might have to pass protesters with signs with fetuses and deal with chants of "murderer" and the like. The law, and court rulings, have determined they should have clear access; a buffer zone might even be set up around the clinic. But, we are dealing with feet here. The protests can go on. They cannot be totally avoided.
There ought to be a law against people like Fred Phelps. His claim that American combat deaths in Iraq are God’s response to America’s tolerance of homosexuals is both offensive and preposterous. His decision to gain publicity for his cause by picketing funerals of Iraq war victims is reprehensible.
-- Mark Graber
The opinion piece was concerned with the judgment itself, but this is a dubious starting point. If there "ought to be a law," it cannot be content based. Pat Robertson nodded in agreement when Jerry Falwell (involved in a famous lawsuit involving a mock ad suggesting his "first time" was with his mother in an outhouse ... the Supremes struck down a judgment 8-0) suggested liberals were a prime reason God allowed 9/11 to happen. He now supports Rudy's presidential bid. That suggestion (both really) was offensive and preposterous too. Doesn't mean he can be sued for saying it. In fact, if some peace group picketed, it could be just as bad.
Privacy concerns plus offense -- what if they suggest he furthered a murderous war? Privacy is a primary concern here, as shown by the analysis and comments linked. Time, place and manner limitations have been upheld, including to protect privacy. This is a limited thing, however. Again, the abortion protest rulings only set up buffer zones, and even then, generally we were dealing with after the fact injunctions and such ... not a civil judgment of significant size, handed down before the behavior was clearly deemed illegitimate. Another case referenced by Professor Dorf upheld a ban on picketing of private homes, but putting aside the dissents (6-3), focus on a private residence is not quite the same thing as a funeral (a one time event) in a public space.
And, Phelps is said to have staid over a thousand feet away. This is important, since I can imagine some reasonable law that provides a buffer zone around a funeral. For instance, on Tuesday, I passed a sign reminding that you cannot picket a polling place within a certain amount of feet. Fine enough, especially given the importance of easy access and fairness concerns (equal time would require a lot of people right need the polling place). But, a person with a sign a few blocks away would surely be legitimate. Such a person might also have offensive literature. No buffer zone will prevent all speech or offense. The wily sort could still take advantage of others' pain (many sadly do this, almost as a profession), making a spectacle of the whole thing. It's reprehensible, but generally not actionable.
A final issue is that neither the family nor the dead were public figures. Time v. Hill, also an invasion of privacy case, involved crime victims who challenged a portrayal of the crime long after it occurred. This was deemed "public" enough to be protected. A Marine who died in Iraq seems to me also a matter of public interest, covered in local news and so forth. Anyway, ultimately, we are dealing with private events. Public figures have some privacy too. So, the public figure issue -- would we be okay with this if the mayor's son was involved? -- seems to me something of a red herring.
A content neutral law that bars protests at funerals very well might be acceptable, and/or upheld if challenged, but the judgment at issue here is much more dubious.