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On March 3, 2006, Lance Cpl. Matthew Snyder was killed in the line of duty in Iraq. The body of the 20-year-old Marine was transported home for a funeral at St. John Catholic Church in Westminster, Md., the following week. The event did not go smoothly. Members of the Westboro Baptist Church attended the funeral, standing outside and waving placards. This small, strange organization preaches hatred for homosexuals and asserts that the death of U.S. soldiers is God’s punishment for America’s toleration. According to the complaint filed by Snyder’s parents, the members shouted slogans similar to the messages appearing on the church’s Web site, including “ Semper fi fags” and “Thank God for dead soldiers.” Snyder’s father sued the church and its leaders for infliction of emotional distress and invasion of privacy. This past October, a federal jury in Baltimore awarded him $10.9 million in compensatory and punitive damages. The case is on appeal. Undeterred, the Westboro Baptist Church has continued to stage protests at military funerals. Its Web site says of the dead: “These turkeys are not heroes. They are lazy, incompetent idiots looking for jobs because they’re not qualified for honest work. … [T]hey voluntarily joined a fag-infested army to fight for a fag-run country now utterly and finally forsaken by God who Himself is fighting against that country.” In response to the verbal muck, 34 state legislatures have introduced bills to limit protests at or near funerals; 27 have passed such measures. The statutes typically impose both time and distance limitations. Some prohibit protesting at military funerals only, while others ban protests at any funeral. Congress in 2006 passed the Respect for America’s Fallen Heroes Act, which bars any type of demonstration at cemeteries under the control of the National Cemetery Administration or at Arlington National Cemetery unless approved by the cemetery superintendent. Like the state statutes, the federal law imposes restrictions on both time (one hour before and after a funeral) and distance (within 150 to 300 feet, depending on the noise level). Recently, one of the state statutes was tested in federal appellate court and found wanting. If others follow the lead of the U.S. Court of Appeals for the 8th Circuit, there will likely be more such protests at military funerals. DEADLY SPEECH In the 8th Circuit case, Phelps-Roper v. Nixon, the daughter of the Westboro Church founder challenged on First Amendment grounds a Missouri statute, Spc. Edward Lee Myers’ Law (named after an Army soldier whose funeral was picketed by church members). The statute makes it a misdemeanor to picket “in front or about” a funeral one hour before or after the ceremony. The statute also provides that if the “in front or about” language is declared unconstitutional, then the restriction will be within 300 feet of a funeral. Represented by the American Civil Liberties Union of Eastern Missouri, Shirley Phelps-Roper sought a preliminary injunction barring enforcement of the statute. After the district court denied the motion, an 8th Circuit panel reversed on Dec. 6, 2007, holding that Phelps-Roper had demonstrated a fair chance of prevailing on her claim and enjoining enforcement of the law. Judge Kermit Bye, writing for the panel, agreed with the district court that the statute was content-neutral and therefore subject to only intermediate scrutiny, rather than to the higher strict-scrutiny test. But he disagreed with the lower court’s finding that “Missouri’s interest in providing safe, secure, and dignified funerals to its citizens” outweighs the church’s interest in “protesting and disparaging such events.” Instead, Bye focused on the fact that funerals occur outside the home. An earlier Supreme Court decision, Frisby v. Schultz (1988), had approved similar “before or about” language restricting protests, but that case involved a Wisconsin town ordinance designed to prevent picketing in front of the homes of doctors who perform abortions. Bye concluded that homes are different from funerals and that the state had “no compelling interest” in protecting individuals from unwanted speech “outside the residential context.” In response to the argument that the church has ample alternative channels to convey its message, he stated, “[Plaintiff] presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message.” In other words, it is not sufficient that the church has the right to promulgate its views in a public square, over the Internet, or through some other manner of general dissemination. The church has a constitutional right to declare “Thank God for dead soldiers” (its “particular message”) to the parents of the fallen (“to … such an audience”) while they are burying their children (“at such occasion”). THE LAST CITADEL Any sensible person will concede that the implications of the 8th Circuit’s decision are revolting. But First Amendment law sometimes compels revolting results as the price we pay for a free marketplace of ideas. Allowing Nazis to march through Skokie, Ill., home of many Holocaust survivors, comes to mind. But this time, the results were not compelled. Instead, they emerged from the 8th Circuit’s pinched view of the right of people to be left alone. The court correctly noted that Frisby involved restricting speech near a residence. But there was no reason to conclude that the values the high court sought to protect in that case must be restricted to the home. Citing earlier precedents on the treatment of the home, then-Justice Sandra Day O’Connor wrote for the Frisby majority, “Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different.” She found that “the State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” She described “preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits” as “an important value.” Then, citing a concurrence by Justice Hugo Black in Gregory v. Chicago (1969), she deemed the home “the last citadel of the tired, the weary, and the sick.” These are powerful words, and O’Connor was entitled to quote them for their rhetorical effect. But they are not literally true. The grave, not the home, is the last citadel of the tired, the weary, and the sick. The grave is where those sufferers go to their final rest. And if preserving the sanctity of the home is an important value, one that can trump free speech, so too is preserving the sanctity of the burial site — particularly the burial site of war dead. PRESERVING PITY Throughout the history of Western civilization, the interment of fallen soldiers has been treated as an inviolable rite. The Iliad is full of bloodshed and betrayal, but the most heinous act is committed by the Greek hero Achilles. After killing the Trojan prince Hector, he fastens Hector’s corpse to his chariot and drags it around the walls of Troy. The gods, who have favored Achilles and engineered his victory, share the anguish of Hector’s parents as they are forced to witness this desecration: “Achilles has destroyed pity, and there is not in him any shame. … Great as he is, let him take care not to make us angry; for see, he does dishonor to the dumb earth in his fury.” Even though the gods still side with the Greeks, Zeus intervenes to allow Priam to take his son’s body for a proper burial. In her just-published book, This Republic of Suffering, Drew Gilpin Faust, president of Harvard University, describes how the Civil War led to a national recognition of the sanctity of the grave. The scale of that war’s carnage was stunning. More than 620,000 soldiers died — a sum equal to the combined total of the dead in all of our country’s other wars from the American Revolution through the Korean War. Nearly half of the deaths were undocumented, the bodies’ identities unknown. The war forged a new understanding of the nation’s duty to its dead. “National cemeteries, pensions, and records that preserved names and identities involved a dramatically new understanding of the relationship of the citizen and the state,” writes Faust. “… Soldiers were not … simply cogs in a machinery of increasingly industrialized warfare. Citizens were selves — bodies and names that lived beyond their own deaths, individuals who were the literal lifeblood of the nation.” Today, U.S. government policy calls for the identification and return of every soldier killed in battle, and U.S. military doctrine requires the expenditure of enormous resources — including the risk of additional fatalities — to recover the bodies of the fallen. O’Connor was right to say that the home is a sacred citadel. But in an age of unprecedented mobility, where most people inhabit many different homes in the course of their lives, the sanctity of the home does not exceed the sanctity of the grave, which is as permanent as it is singular. If people have a right to be left alone, insulated from unwanted expression, in their homes, they deserve no less privacy at the graveside of their loved ones. In 17 years of contributing commentaries to ALM newspapers, including Legal Times, I have never before criticized a court for taking too expansive a view of freedom of speech. My criticism has always come from the other direction. But there is a first time for everything. In finding that the Westboro Baptist Church has a constitutionally protected right to convey unwanted and offensive speech to parents engaged in the act of burying their children, the 8th Circuit went too far. I hope no other court commits such a callous mistake.
Lawrence J. Siskind of San Francisco’s Harvey Siskind specializes in intellectual property law. This article first appeared in The Recorder , an ALM publication.

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