Is funeral protest protected?

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The U.S. Supreme Court has agreed to decide whether the First Amendment rights of protesters trump the privacy rights of those attending the funeral of a U.S. Marine who was killed in Iraq.

The Court will review a Fourth Circuit decision overturning a $5 million award to a man who claimed he suffered emotional distress as the result of a church group protesting at his son’s military funeral. (See “Church members aren’t liable for funeral protest,” Lawyers USA, Sept. 26, 2009.)

The defendants in the case are members of a small Baptist church who regularly picket military funerals, espousing the belief that the deaths of U.S. service members are divine retribution for the nation’s tolerance for homosexuality.

The plaintiff’s son was killed in Iraq while serving with the Marines.

The plaintiff sued, alleging he suffered emotional distress and had his privacy invaded when the defendants picketed his son’s funeral carrying signs with messages such as “Thank God for Dead Soldiers.”

The Fourth Circuit decided that the defendants’ activities were protected under the First Amendment, explaining that the “general context of the speech in this proceeding is one of impassioned (and highly offensive) protest, with the speech at issue conveyed on handheld placards. A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts.”

A decision is expected next term.

The case is Snyder v. Phelps, No. 09-751, cert. granted March 8.