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Illinois Issues
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State of the State: Illinois Aims to Balance Free Speech and Sensitivity

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WUIS/Illinois Issues

After a ruling from the U.S. Supreme Court allowing a hate group to continue protesting at funerals, Illinois and other states seek a balance between constitutionally protected speech and sensitivity for grieving families. 

The Supreme Court ruled in the spring that protests by the Westboro Baptist Church at military funerals are protected by the First Amendment. The Kansas-based organization was founded in 1955 by Fred Phelps. The majority of its members are related to Phelps, and the group has been at the center of highly controversial protests for years. In the past 20 years, Westboro has picketed nearly 600 funerals. Members of the congregation believe that God hates America for being permissive on sin, and the country is being punished through the deaths of soldiers and tragic events like the September 11 terrorist attacks. 

Albert Snyder — the father of Marine Lance Cpl. Matthew Snyder, who was killed in a Humvee crash in Iraq — sued the church after they protested near his son’s funeral in Maryland in 2006. A jury awarded Snyder more than $10 million for the church’s infliction of emotional distress as well as other offenses. “At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing,” the Supreme Court opinion said, “and that he often becomes tearful, angry and physically ill when he thinks about it.” 

The church argued that the ruling was excessive, and a judge knocked the settlement down to $1 million. However, an appellate court sided with Westboro that it could not be held liable for the speech under the First Amendment, and the Supreme Court agreed. 

The case came down to whether the congregation’s behavior amounted to a personal attack on the Snyders or a message for the populace at large. The court cites a previous case, Connick v. Myers: “[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.” However, the justices acknowledged that the standards are a bit hazy for determining what speech is on a matter of public concern. The opinion says public speech can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or if it “is a subject of general interest and of value and concern to the public.”

The court cited the case Garrison v. Louisiana when explaining why such speech demands special protection under the law. “Speech concerning public affairs is more than self-expression; it is the essence of self-government.”

On the day of Mathew Snyder’s funeral, Westboro members protested about 1,000 feet from the church where services were held. They cooperated with local police, and their demonstration took place without violence. The group held up signs with messages that included: “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys” and “You’re Going to Hell.” They sang songs and recited Bible verses. 

“While these messages may fall short of refined social or political commentary, the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public import,” the Supreme Court ruling said. 

But Albert Snyder says the protest was personal to him. “That’s the way the Supreme Court looked at it, and that’s not the way I looked at it.” His lawyers argued that the group targeted his family and used the ties to national issues as a cover. The majority of the justices did not agree. “Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that the picketing did not represent Westboro’s honestly held beliefs on public issues. Westboro may have chosen the picket location to increase publicity for its views, and its speech may have been particularly hurtful to Snyder. That does not mean that its speech should be afforded less than full First Amendment protection under the circumstances of this case.”

However, Justice Samuel Alito wrote in his dissenting opinion that he thinks Snyder was personally targeted because he was a Catholic and a member of the U.S. military. “Since [church members] chose to stage their protest at Matthew Snyder’s funeral and not at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased.” He says group members committed an action they are liable for — inflicting emotional distress and defaming the character of a private individual — to get their message out. So, while the message may be public speech, any attack on Snyder is not. Alito argued that signs with messages such as “You’re Going to Hell” could be construed as personal attacks on Matthew Snyder. 

Albert Snyder is now working with state and local governments to help them craft laws to restrict protests at funerals, something that many feel the court’s ruling left a door open for. The court cited the Frisby v. Schultz case. “Even protected speech is not equally permissible in all places and at all times. Westboro’s choice of where and when to conduct its picketing is not beyond the government’s regulatory reach” — it is “subject to reasonable time, place, or manner restrictions.” The court also cites a case, Madsen v. Women’s Health Center Inc., in which it created a zone protected from protesters around the entrance to an abortion clinic. 

States are looking to such time and place restrictions to protect mourners from the protests. Gov. Pat Quinn signed House Bill 180, which outlaws “disorderly conduct” 30 minutes before and after a funeral and within 300 feet of the funeral as it is taking place. The new law extends the buffer zone from a 2006 law that called for protesters to be 200 feet away from services. 

However, Yorkville Republican Rep. Kay Hatcher introduced HB 180with a boundary of 1,000 feet. She says the legislation was proposed to her by students working on a class project. They researched laws in other states before giving her suggestions. “They had done the due diligence before they ever brought it to me.”

But Crest Hill Democratic Sen. A. J. Wilhelmi cites other state laws, such as one in Missouri, that were tossed out by courts. “The last thing we want to do is have a law that’s been on the books since 2006 be struck down because of becoming too aggressive.” 

He says Illinois’ law does not target any particular message, only behaviors. “What differentiates our law from other states is that ours is content-neutral. So it doesn’t matter what you’re saying as long as you’re not disruptive.” The law lists “singing,” “chanting,” “yelling” or noisemaking as potentially disruptive behavior. The law also prohibits the display of signs that have “any visual images that convey fighting words or actual or veiled threats against any other person” within the protected time and area around the funeral. 

“I think most of the states are looking to see what other states have passed and working their laws around that,” says Snyder. “For me it’s not the distance as much as it is the time. … They’re not going to come to funerals and protest if it is not going to be right before and right after.” He says federal restrictions would be the cleanest solution. 

Snyder says that average families need the protection, while people with money, fame or high social status targeted by Westboro can often keep their loved ones’ funerals secure. He points to the church’s attempt to picket the funeral of Elizabeth Edwards, wife of former U.S. Sen. and past presidential candidate John Edwards, because of her positive stance on same-sex marriage. The small group of protestors was overwhelmed by a so-called line of love made up of hundreds of the late Edwards’ supporters. “Don’t get me wrong, I think that Elizabeth Edwards was a wonderful person,” Snyder says. “The closest they got to her funeral was two miles.” 

Representatives of Westboro Baptist Church have vowed to challenge laws restricting funeral protests. When the Supreme Court ruling was issued, 43 states had some form of restrictive law, and the federal government restricts protests at national cemeteries, which are typically military cemeteries. The family has no shortage of lawyers to present challenges — 11 of Fred Phelps’ 13 children are lawyers. His daughter, Margie Phelps, argued the church’s case before the Supreme Court. Legal experts speculate that whatever laws are put into place, the Phelpses would likely abide and find ways to continue their protests. “They’re good at this,” Mark Potok, director of the Southern Poverty Law Center’s Intelligence Project, told AOL news. “They understand the First Amendment very, very well. They are not stupid people. They are vile people.” The group funds its operations in part through successful civil suits against communities that have violated their First Amendment rights. 

We are a country with a proud history of defending the right to assemble publicly and the right to free speech, even the worst kinds of speech, and most would agree that the vitriol coming from Phelps and his ilk is some of the worst of the worst. “The record makes clear that the applicable legal term — ‘emotional distress’ — fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief,” the Supreme Court opinion said. This is a situation where it is tempting to tailor the law to stop a certain group from some kind of horrendous behavior. But lawmakers must also think about unforeseen consequences, consider more than just the situation at hand and create laws that are relevant for years to come. 

It will likely be up to the courts to decide whether lawmakers find a compromise that protects speech in a way that upholds the principles of this country while looking out for the loved ones of the soldiers who fight and die protecting the safety that affords us such ideals.

 

 Albert Snyder — the father of Marine Lance Cpl. Matthew Snyder, who was killed in a Humvee crash in Iraq — sued the church after they protested near his son’s funeral in Maryland in 2006.

Illinois Issues, October 2011

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