Conservatives: Beware of the Military Funeral Case

The obnoxious family that calls itself the Westboro Baptist Church is an example of how it is sometimes difficult to take the long view of freedom. Patriotic, constitutional conservatives, however, should be cautioned about the WBC military funeral case now in the news. It has potential for mischief against conservative activists.

WBC has made a name for itself protesting at military funerals and is in the middle of a Supreme Court battle with the father of a slain Marine over whether WBC's public relations ploys crossed the line and constituted a legal wrong. The Fourth Circuit reversed a U.S. District Court judgment awarding the father, Albert Snyder, millions of dollars in tort damages. The Supreme Court then agreed to hear Mr. Snyder's case.

WBC has managed to offend nearly everyone. They abuse biblical verses identifying conduct God hates to state that God hates individuals. WBC has a website (, relentlessly bashes the Catholic Church, and, in highly visible protests, its pitifully few members carry signs near military funerals with messages such as "Thank God for dead soldiers," "God Hates the USA," "Pope in hell," and others designed to provoke attention and rage.

Mr. Snyder did not see the signs at his son's funeral until later that day, when footage was shown on television. Mr. Snyder then followed up by reviewing WBC's offensive internet rants naming his son. Understandably outraged, he filed suit against WBC alleging various torts.

However, what WBC wrote about Mr. Snyder's son, Matthew, was obviously gleaned from his obituary, and none of it was private information. WBC's internet rant could have been about nearly anyone. Matthew, God rest his soul, happened to be a convenient means for WBC's twisted methods. (And if you want examples of speaking ill of the dead, check out the left-wing blogosphere after a conservative dies.)

Even though I consider myself a First Amendment purist, I nonetheless rooted for Mr. Snyder, believing there must be some overriding protection of the sanctity of a funeral, especially a military one.

Tactically, however, WBC has already won. Respected law professors and commentators Eugene Volokh, Jonathan Turley, and others have sided with WBC on the First Amendment and other legal issues. The lawsuit has garnered more publicity than WBC could purchase, and publicity is their primary goal.

On the issue of the First Amendment protection of protests, conservatives should read Justice Scalia's dissent in the 2000 6-3 decision in Hill v. Colorado. That case upheld Colorado's eight-foot barrier on "unwelcome" speech outside the building of an abortion clinic. Scalia's dissent helped change my mind about Mr. Snyder's case. "Suffice it to say that if protecting people from unwelcome communications," Scalia wrote, "is a compelling state interest, the First Amendment is a dead letter."

Justice Scalia noted, correctly in my opinion, that even content-neutral restrictions that operate on messages of protest or education pose the risk of censoring the content of the messages themselves. That's a method frequently employed by those who design to censor. Regulating certain conduct can have the tendency to regulate speech. Scalia also criticized the majority opinion's concocting a right "to be let alone."

If you want proof that the WBC case has potential for mischief, Harry Reid, "call-me-Senator" Barbara Boxer, Chuck Schumer, and other politicians have filed amicus curiae briefs in the case. Yes, the same politicians who, daily now, seek to destroy the First Amendment weighed in.

An amicus brief filed by 48 state attorneys general, including Richard Blumenthal, Martha Coakley, Jerry Brown, and Barack Obama's favorite state attorney general, Lisa Madigan, is fraught with politics. It is so flawed legally and constitutionally that first-year law students might even react with "tsk, tsk."

The Fourth Circuit in the WBC case reversed the award to Mr. Snyder based in part on the legal interpretation that the facts did not meet the standards for the torts under which he sued, including the tort of intrusion upon seclusion.

Two of the three judges then noted that states and localities may "place reasonable and content-neutral time, place, and manner restrictions on activities that are otherwise constitutionally protected." Virginia, where I live, has a statute making it unlawful to disrupt funerals and memorial services. Disruption differs from protest, albeit perhaps not in the eyes of the loved ones of slain soldiers.

The brief filed by the attorneys general claims that a compelling state interest is at stake in this litigation between private plaintiffs, which raised my Scalia First Amendment antenna.

The brief of the attorneys general, unfortunately, goes beyond attacking protests at funerals to "targeted picketing" and internet postings. Besides mixing and confusing the standards for the various torts under which Mr. Snyder sued, the attorneys general would also give more First Amendment protection to the "media" than to "non-media" speakers. I'll refer to the latter as "we, the riffraff."

Besides botching the law and legal standards, the attorneys general make unsubstantiated factual claims, such as that the WBC's funeral protests are unprecedented in American history. I certainly don't condone chaos at funerals, but the AGs' brief is wrong. Sam Adams used the funeral of a small boy killed in the Boston Massacre as a political rally. Colonists in Cambridge, Massachusetts stormed and disrupted the funeral of an occupying British soldier.

In 1953, AFL cemetery workers in Chicago picketed the funeral of an AFL official. A picketer was quoted saying the official "wouldn't have had it any other way." Using funerals as the situs of protest is wrong, but it is done precisely because that draws attention to the message. It's the shock value.

In a period of increasing civilian protest by constitutional conservatives, and with a government eagerly passing laws eroding First Amendment freedoms such as hate crimes legislation, left-wing citizens and groups will become government surrogates to harass and silence protest through civil litigation.

This is to say that the politicians who filed amicus briefs are up to more than wrapping themselves in the American flag. They know First Amendment court decisions are often fickle. If the WBC case goes their way, it will be used by left-wing statists to file lawsuits against conservative protesters in other settings -- particularly those who use shock, rhetoric, and even biblical verses to gain attention to their message -- as a means to harass, intimidate, and silence them. is already waiting.

WBC abused the Old Testament to make a statement. They are wrong. Where I grew up, this wouldn't have reached litigation. WBC is aware of that type of reaction and got police protection. A better reaction to WBC, however, comes from the New Testament, which is to turn the other cheek and ignore them.

My heart goes out to Mr. Snyder, but my head tells me his litigation won't result in the solution he seeks. The long-term solution for our fallen soldiers and their families appears to be content-neutral funeral anti-disruption ordinances that pass the Scalia test.