By John M. Rogitz

This week the Supreme Court agreed to take an appeal from a Federal appellate decision that overturned a multi-million dollar tort verdict awarded to Albert Snyder, the father of late Marine Matthew Snyder.  Matthew was tragically killed in Iraq back in 2006.   When his father held his funeral at a Catholic church in Maryland, a group from Kansas’ Westboro Baptist Church, a church composed mostly of a single extended family, drove to Maryland to protest Matthew’s funeral with witty signs like “God Hates the USA,” “Fag troops,” “You’re going to hell,” “God hates you,” “Semper fi fags,” and “Thank God for Dead Soldiers.”

As if that weren’t enough, members of the Westboro Baptist Church returned to Kansas and continued to publicize their trip to Maryland on their website, “godhatesfags.com.”  This was all done on the belief that, as the appellate court paraphrased, “God hates homosexuality and hates and punishes America for its tolerance of homosexuality, particularly in the United States military.”

This upset Mr. Snyder, as I’m sure it would upset any grieving parent.  That’s when he slapped Westboro Baptist with a civil law suit claiming five causes of action.  Only three of those causes actually made it to trial: Intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy.

The long and short of the trial proceedings is that Mr. Snyder was awarded compensatory and punitive damages totaling $10.9 million.  On appeal, the 4^th Circuit Court of Appeals overturned the verdict, saying that Westboro Baptist’s actions were constitutionally protected political speech under the First Amendment.

I’ll spare my readers all the dense legal arguments on First Amendment jurisprudence.  The notoriously conservative 4^th Circuit got this one right.  The appellate court’s ruling boils down to observing that the law often uses “balancing tests” where some rights are weighed against others when navigating through conflicting individual rights.  Mr. Synder’s rights to privacy and freedom from emotional distress are outweighed by the interest in protecting the types of speech we as Americans hold so dear – social and political speech.  We’re not talking pornography, fighting words or threats against the President.  We’re talking political speech.  As distasteful and vulgar as it was, Westboro Baptist’s speech was indeed political in nature.  For all the wonders our free republic provides, those same freedoms mean that sometimes we have to stomach things that we find truly repulsive.

But before my readers click off with disgust at my position, I’d like to offer a solution.  Obviously we can’t make a law criminalizing expression of fanatical religious and political views and we also can’t allow suits in civil court for emotional distress claims arising from those views.  What does that leave us?  One would think not much.  One would be wrong.

This won’t help Mr. Snyder’s plight much, but we do have one last option going forward.  That option is what has become known as a “time, place, and manner” restriction on military funeral protests.  Over the years, the Supreme Court has allowed some time, place and manner restrictions on the right to freely assemble and speak where there is an important interest at stake.

Whether you realize it or not, you see these restrictions on a daily basis.  You need a permit to hold a rally in a public park, you can’t march down the freeway during rush hour, and you can’t air your political opinions through a bullhorn at 2am.  These restrictions are acceptable because they are reasonable.  By the same token, it seems to me that disallowing politically-motivated protests at military funerals is pretty darn reasonable.

That, my friends, is what Congress needs to do.  Pass a law restricting the time, place and manner of these funeral protests.  Make sure that protesters have to stay far enough away so that they are out of sight, out of mind.  Then real God-loving, patriotic Americans like Albert Snyder can focus on all the good their sons and daughters brought to this world and the rest of us don’t have to go on asking ourselves how the congregation of the Westboro Baptist Church could possibly live with themselves.

COPYRIGHT 2010 JOHN M. ROGITZ