Public vs. Private: Funerals, Free Speech, and Privacy
posted by Daniel Solove
Timothy Zick recently blogged about a lawsuit by a parent of a deceased soldier against a fundamentalist religious group that protested near the funeral. The religious group has been protesting near several funerals for soldiers, and their message is particularly offensive: The group claims that the soldiers died as punishment for a society that permits homosexuality. Read Timothy’s post for more background about the case.
The verdict is now in. From the AP:
A grieving father won a nearly $11 million verdict Wednesday against a fundamentalist Kansas church that pickets military funerals out of a belief that the war in Iraq is a punishment for the nation’s tolerance of homosexuality.
Albert Snyder of York, Pa., sued the Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Lance Cpl. Matthew Snyder, who was killed in Iraq.
The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress. . . .
Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as “Thank God for dead soldiers” and “God hates fags.”
Snyder claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.
While the amount of the verdict strikes me as far too excessive, I am pleased that the plaintiffs won (from what limited information I’ve read about the case). I would like to respond to Timothy Zick’s very thoughtful and compelling argument for why the speech of the protesters should win out over the interests of the family holding the funeral. Timothy argues:
These are all well-worn justifications and responses. But they are also, as I say, somewhat unsatisfying. Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented. One of the central arguments in my book is that our public expressive topography has suffered a slow but steady erosion. The spaces we have left — including all of the sidewalks and public thoroughfares — are critical to the survival of any tangible public expressive culture. This is not an abstract concern. In this light, small contests like the ones concerning funeral protests attain a significance well beyond the speakers and their hateful message. Restricting or supressing the Westboro protesters will likely mean denying supporters the opportunity to pay last respects as well (even silently and respectfully). Well, one might say, that’s no big loss — sidewalks near cemeteries do not seem appropriate places for public expression. More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting.
Although Timothy makes a good point about the gradual restriction of public space, I am inclined to come out in favor of the plaintiffs in this very difficult case. A funeral, although held outside, is not a purely public event. In my work on privacy, I’ve frequently argued about how the simplistic binary division of the world into public and private spaces doesn’t reflect reality very well. As I wrote in The Future of Reputation:
[M]uch of our daily lives occurs in realms that are neither purely public nor purely private. Instead our activities often take place in the twilight between public and private. We used to speak on the phone at home or in closed phone booths, but with cell phones, we now carry out our conversations in a variety of public places. . . . We frequently have conversations in public that we don’t expect to be overheard.
The work of Professors Helen Nissenbaum (NYU Culture & Communication) and Andrew McClurg (Univ. of Memphis Law), among others, also effectively demonstrates how muddy the distinction between public and private is. Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998); Andrew McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989 (1995).
These protests could readily be held elsewhere. They disturbed the tranquility and privacy of a family’s deeply personal occasion. It is true that holding these protests away from the funeral will make them less potent — there is indeed a cost to speech here. But the funeral too is also a form of speech, a quiet and subdued event, which is disrupted by the protesters. The protesters aren’t the only ones trying to speak.
I certainly value space for protests. Protesters should be able to voice their messages vociferously, but there is no need for them to invade a quasi-private event in the process. The funeral is not a purely public event, and the space around it is different from a street corner in Times Square. It is different from the National Mall in Washington, DC. That’s why Timothy’s point about the loss of public space, though well-taken, doesn’t quite work in this context.
UPDATE: Ed Still in the comments points to a Baltimore Sun article that contains details about the case that aren’t in the other stories I’ve read. According to that article:
Three adults and four children picketed the March 10, 2006, funeral at St. John Roman Catholic Church in Westminster. Westboro members insisted that their demonstration, about 1,000 feet from the Catholic church, took place legally. . . .
They said they waved placards — “Thank God for IEDs” and “Fag Troops” among others — near the funeral motorcade to bring attention to their message.
Snyder testified that he never saw the content of the signs as he entered and left St. John’s on the day of his son’s funeral. He read the signs for the first time during television news reports later that day.
These facts make me severely question my position that the plaintiffs should have won. If in fact this protest wasn’t intrusive into the funeral ceremony, then I don’t see the basis for an invasion of privacy or intentional infliction of emotional distress claim.
At this point, given the paucity of reliable and complete facts in media stories, I’m not going to opine anymore until I read a more thorough account of the facts.