"Judgment Day for the Westboro Baptist Church"

That's how Craig Trebilcock, lawyer for Albert Snyder, characterized the jury award of $11 million to his client. The Westboro Baptist Church is the delightful organization that sends its members to funerals of fallen U.S. soldiers, sailors and marines, bearing signs saying "Thank God for Dead Soldiers" and "God Hates Fags." Church members believe that God kills U.S. service members serving in Iraq and Afghanistan as punishment for declining morals here at home, especially tolerance for lesbians, gays, bisexuals and transgendered persons. Apart from the peculiarity of this particular theological view---why would God, even if he does "hate fags," take out his wrath on the one institution in American life that is required to exclude such people by an Act of Congress?---there is some question about how the verdict, and criminal laws that have been enacted around the country forbidding this sort of activity at funerals, can be squared with the First Amendment.

The most obvious answer is an expansion of the principle established in Frisby v. Schultz, which upheld a ban on "targeted picketing" of, in that case, the home of a doctor who performed abortions. There, Justice O'Connor wrote for the Court: "Although in many locations, we expect individuals simply to avoid speech they do not want to hear, cf. Erznoznik v. City of Jacksonville, supra, at 210-211; Cohen v. California, the home is different." Likewise, the argument goes here, a funeral is different.

Fair enough, but the problem is that lots of places and circumstances are "different." The office---where people spend about half their waking hours, is different. For people who travel by trains, the train may be different, because one cannot simply get up and leave. Etc. The worry that the captive audience rationale of Frisby is potentially limitless is, I think, a reason to think of the imposition of criminal or civil liability for funeral picketing as a "time" and "place" regulation rather than simply a place regulation.

But even that doesn't fully work. Under the relevant case law, a content-neutral "time, place or manner" restriction in a public forum is permissible if it is reasonable and leaves open adequate alternative means of communication. The imposition of liability in cases of this sort isn't exactly content-neutral. There would be no liability for someone holding up a sign saying, for example, "Thank you for your ultimate sacrifice."

So, were the First Amendment rights of the Westboro Baptists violated? I certainly want to say no. Perhaps we might treat what they did as a kind of trespass: During a funeral, the area around the funeral is in the possession of the mourners, and someone who comes into that area with the intent to provide deep offense and hurt commits a very serious trespass. Or whatever. Any doctrine that would protect "Thank God for Dead Soldiers" at a soldier's funeral would simply discredit the First Amendment itself.

Posted by Mike Dorf