A "Funeral Exception" to the First Amendment?


SCOTUSblog's Lyle Denniston has a very interesting recap of yesterday's oral arguments in Snyder v. Phelps, the case stemming from the ugly military funeral protests staged by the anti-gay Westboro Baptist Church. Here's a snippet:

When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction?  If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a  "funeral exception" to the right to speak out in public in outrageous and hurtful ways.  It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices.  Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that "this is a case about exploiting a private family's grief. Why should the First Amendment tolerate that?"…

Another telling sign was Chief Justice John G. Roberts, Jr., repeating with increasing force the accusation that the Westboro Baptist funeral protesters had singled out the dead soldier's father and the funeral, not to enter a discussion about public affairs including morality, but simply to achieve "maximum publicity." Snyder, he said, sought only to bury his son, not to make any kind of statement.  The Chief Justice was openly skeptical of the small church's claim, made by its lawyer, that "it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message."