The Fred Phelps Family and Free Speech

from the dole institute of politics at the university of kansas k pr percent is nothing sacred the phelps family and free speech and kate mcintyre the us supreme court will hear oral arguments this week in snyder beat phelps a case that pits the rights of a family to mourn in private against the free speech rights of the phelps family of topeka the case arose after the felts picketed the two thousand six funeral of lance corporal matthew snyder a us marine killed while serving in iraq matthews father filed suit against the phelps family won a jury verdict and was awarded five million dollars in compensatory and punitive damages in two thousand nine the fourth circuit court of appeals reversed the decision of the district court to snyder's appealed the fourth circuit decision to the us supreme court which will hear arguments for both sides this wednesday october six today's kbr presents features two law professors who offered competing amicus briefs in snyder beat phelps steve mcallister is the solicitor general of kansas and a professor at the

university of kansas law school christina wells is the university of missouri law professor specializing in free speech and the first amendment mcallister and well spoken the dole institute of politics on september twenty seven two thousand ten moderate and five director of the institute's bill lacy my first question now professors is very simple why did the supreme court choose to hear this particular case it's a good question why the court took this case frankly i wouldn't say proposals on our own there were actually spoke together year ago last summer to her group moved to the attorneys general from across the nation were talking about funeral protest laws in this case was then working its way up through the courts and i don't think the court appeals and yet decided that the jury did impose liability and i think we both suspected that the likely answer on appeal would do luckily when

stan and so when that was the answer from the fourth circuit frankly i wasn't surprised at all i was much more surprised when the court took the case because i do think it's probably easier to invoke their previous decisions to uphold the result of the villages are not liable than it is to hold the conqueror are so i'm not sure why they target there was no the usual reason for the supreme court to take the case is you they think it's obviously wrong or there's a split of opinion and lower courts but there's no other decision like this out there de conflicting with the song solo i guess is that at least some of them are extremely interested in me the issues this case presents and maybe this is an opportunity to clarify what the law is in this area but that said i wouldn't know if it's ones who want to clarify that the first amendment protects the us or maybe their one or more justices

you want to take a hard look at whether this in fact was the correct result in the truck or below and i don't i don't disagree with anything that steve said the law professors are on all sorts of lot of lip service and when the corcoran insert everybody in my field free speech he'll come and there was a collective hope i really just don't know why exactly i'm from exactly the reasons that steve said there is a possibility and this case involves the that or not mr unlawful ron an intentional infliction of emotional distress and this particular issue does involve a slightly different twist on that then the corps has ever decided and so it may be that the courts finally going to decide an issue that you could never have to decide and that a lot of people wondered about that might be one reason why i decided to go ahead and take the case but that doesn't account for all of the other things that it decided agreed to decide and there's a whole bunch of stuff floating around this case had several different issues and so i think this is one of the more perplexing

decisions for the court to have taken i think all of us i think you and i both talked about this last time i thought that what that issue on funeral protest that would make it up to the supreme court was going to be a challenge to one of the statutes and that was for sure going to make it out there that this is it this is an unusual issue and i think beyond inviting come to the conclusion is that that there are two lower court appears the district court impose liability in the fourth circuit in the first nighter on those terribly good they're not in the sense that they have bad outcomes but they're not very well explained in not terribly well reasoned and the supreme court i think might be worried about that and this particular area so it may have decided given that there's already some lack of clarity they wanted to go haven't really issue a strong forceful opinion in one way we're not sure but it may just see that it would clarify the law i think if we if we took a poll here tonight everybody would agree essentially you know on their opinions about phelps but this case really isn't about phelps what's the real crux of this case what's the key issue in this case

well take a crack at that first i think that what's at issue is is partly suggested by perhaps the title of this program is nothing sacred is there no limit to what people can say where they can't say it when they can save the united states and i think that sort of a big picture issue over the forces can do this and then basically walk away from that with no legal responsibility when frankly audi year they are targeting a private event they are targeting a private family they are doing it because they know the attention it gets either lots of other ways they could express their message and they do but they are choosing one of the most we would say outrageous ways to do it that one can imagine affecting two hundred plus years of american history apparently no one else did imagine it because no one else has done it the way they do it and so i do think it does present for the court very the hard facts in their echelon a factual issues in this case and problems with the record in and what exactly was proven or not but just

taking their general behavior represents the court was the serious question of is nothing sacred i suppose even if the phelps is when you could argue still maybe the whole was a place people could be protected from disorders but that may be the only place and so i think this is a real test of really strong facts testing how much we believe in certain principles and where those principles do you have limits on some nights to sing i actually the way that you describe that is nothing sacred to me sort of describes the crux of my position from the opposite point of view which is that that actually isn't at all what this case is about not get too deeply into the facts of what happened but this is a situation where the phelps are allowed to run amuck more running through funerals screaming wildly with bullhorns and waving their offensive signs right to free speech and jurisprudence that already exists allows

the government to regulate a lot of disturbing an invasive protest it already you can't trust passenger funeral you can even go to one uninvited and those are considered to be private ceremonies so the crux of this is whether or not a group of people who stood more than five hundred feet away and who obeyed all police directors and who by all accounts purchases relatively peacefully and in my way the plaintiff in this case the father of the unfortunate and men who was killed his father didn't even see the signs until several days later a more hours later at it funeral protests for a news broadcast or on the web and whether the vats it's considered to be disruptive of a funeral or you can regulate a lot of these things by having fewer protest at it in place in almost every state does now does he tell people say five hundred feet away on intelligent being lazy the crux of this case comes down to whether those things aren't enough

and whether you should be allowed to seize someone because good message that they have on their signs on their internet posting is so offensive that you think it inflicts emotional distress on data privacy and the regulation of offensive speech something the court very concerned about for a long time and i will give you that the phelps they're entrepreneurial in the creativity with which they've done this but they're hardly the first sign of protesters or speakers to the incredibly offensive young nazis threatened to protest it's county which is a predominantly jewish settler with a heavy concentration polka survivors the planned protests there are people who have done very offensive very awful things but we're not going to limit the decision in this case whitaker felt suggest has worked that way in terms of the way that tort liability works where the protesters phelps were involved in this war than anyway violating any laws this thing or not to lower a mean that's that's a point i've noted this in their family

and lawyers as most of you probably know so they understand the law and then their goal is typically to follow the law on this or lived alone for sponsors standing or not here that's what they do so they certainly would've tried to comply with all real marilyn does have a funeral protest that in place now that you didn't at the time i think and so they were subject to police directives and it and i think it's understood by both parties that they didn't obey those can you really come to give us a little bit of the history of the scariest i know that it's been you know gone through a couple of appeals but kind of describe how it came out through the chain of of course and doesn't resemble an actually larger case can be really complicated but this one involved in that mr snyder who is the father of matthew snyder that their son whose funeral and it felt better set in maryland recently quickly after the funeral after you he was very upset and understandably so

and decided to file a lawsuit because i think he wanted the field to punish i think he's a lot of his two recently stunning thinks bankrupting them at one of the ways to stop some are protesting a fight scene that when the president know whether he's actually said that and several lawsuits and for a lot of different ports and there's a twist the legal wrong i it's just a way that you can tell someone you for me and so a lot of things that are criminal of criminal laws cover also are covered in tort law so assault and battery of torts world he sued for invasion of privacy and was a common torn on the state every state and an intentional push of emotional distress which is also a torch on this the less favored but it's certainly one that almost every state recognizes if not all states you're actually towards professors he also sued for libel i said that the some of the things on your internet postings they have an internet posting little signs went to say what the site

said i thought were offensive they were not so friendly signs things like thank god for dead soldiers god hates hugh pope and how those of the more mild once these are the types of signs they hold the funeral on the internet posting was a comment line matthew snyder's been late raised in the catholic faith and how his parents who were divorced had basically ruins his life an end and how the catholic faith was a terrible thing and it was a little bit more in your face than that but that's the general just that mr snyder sued claiming that there were allies at faustina the fact that his son and also that these statements intense intensely inflict emotional distress and invaded his privacy on the district court said he could not available i will plant so even the district court said there are no false statements of fact that the image reputation because nobody believes what the felt say

it so there are false statements of fact an opera with force combat he they did prevail when he did prevail on intense conflicts in emotional distress claim he and the invasion of privacy crime hands and they were source the ten million dollars that was to the half million or something like that in an actual target of damages from her and compensatory damages and then several million additionally and punitive damages and that verdict was immediately appealed to the fourth circuit to federal court circuit court and from maryland and the maryland circuit court last fall said i don't know you know what the first amendment comes into play here and that this recording considered for some an argument but rejected them the fourth circuit considered the first human arguments to be more important and basically said that unless there was a truly faustina fact even with intent on pushing emotion distress or invasion of privacy that <unk> couldn't recover and i think that's that's very much and i will say in

the trial court it was a jury trial so once the judge did decide to let certain coins go forward it was a jury that decided the torch were committed in an interesting way and it could be a reporter lilly there's a lot of argument and the briefs in the supreme court about what happened but the fact the matter is that phelps is did not appeal the sufficiency of the evidence from the trial from the jury's determination so illegally when the jury found the elements of the sports format that's over because now the forces are simply argue on appeal the first amendment immunizes even if we did these things and so that's important from our perspective because along in the breeze exactly who saw what women look at what happened and what effect it had on everyone but it from the state's perspective the cases it comes to the supreme court is really not about are the elements of the tort satisfy the court has to take that as a given that they are and so really the issue now in the supreme court as does the first amendment basically immunize them even though a jury found that they committed the state law tort so is it

fair to say that the reason that that the original verdict was set aside was because of the first amendment the absolute that's exactly as a listener then does that become the focal point of the supreme court case what is and my point is it really should be the old point guard their median income in the case for example argued that snyder didn't even prove the elements of the torah under maryland law though like the supreme court's going to get into that because i really think that's off the table by virtue of the forces have not appeal that question marriages aren't first amendment protects is first amendment protects is there's certainly a number of us noted that realistically a lot of the elements may not have been that but i think steve's right that i'm the most are wiping simple factual issues may come into play in how the court applies the first amendment i don't know that the court will say the elements of the torch happened in that may not may not be its concern it gets very concerned with the first non issues their parents would tell us senate makes you don't know how to

explain this to me and then maybe i assume all of you are returning certainly not live beyond the arab public concern of what does that mean was it important to this case well certainly the state supported they're not necessarily as being on matters of public concern when they attacked the snyder family obviously they are if they're if they're talking about or they're talking about gays serving in the military or whatever those kinds of issues obviously our public concern ah but when they're attacking a particular family and talking about the soldier and the family who have no connection too much of what they talk about really that that those people are not really part of the discussion of what is a matter of public concern and that's one of the difficulties with this case is this and much of the law that exists or at the supreme court as defamation law so it's all driven by defamation oceans and in being a matter of public concern matters and defamation because the court has given more

protection when speech and balls matters that are of interest to the public obviously they're going to make it more difficult for people to sue when a government official was criticized all whereas in service talking about the private to someone's private life and that's a private citizen not in the public eye the court has said well those first amendment protections may not apply to the speaker setting and that's a concept that the four circuit invoked hearing arguing that because they are speaking on matters of public concern the first amendment is more complicated but it's a serious question in the case because really what the forces are doing is saying we can take any issue in any person and turn it all into a matter of public concern even if they don't believe that divorce is right or legal in god's eyes that any person who's ever been divorced becomes a target potentially under the forces world do you think the catholic church is evil than a catholic becomes a target in the forces do because their view and the view that we're

smarter the four circuit wrongly agreed with this it's a matter of public concern if you imported that person anyway so in other words you can take an issue everyone who's a member of the class that might connect to that issue is no longer really private in the argument before circuit the forces make is that the first amendment protects them and the states obviously in the slaughter of them would disagree with that and i do agree we see that at the issue of what is a matter of public concern has not want the corps to find very well and it is pushed by this issue of libel law which largely has to do with restoring the reputation and those issues are different and we're talking about here which is largely an issue of emotional distress and the end being traumatized at night and that those that's a very real emotion that occurred here i guess i'd take a little bit of an issue with steve's analogies because i think in fact you do have a right to talk to someone and it is an issue of public concern to say i think that you're going to hell because you got divorced and that made jackie initial

public concern if you think you know that the forces that i have or you i think because you're catholic that you are in a destiny for a terrible afterlife because it's the wrong religion it did it had a huge he adds talk about somebody particular benefit that somehow takes it out of the first amendment not public discourse by particular rise and speech about an individual can't be right there has to be some other standard there and we did all the time criticizing a developer we have a developer and misery columbia who's very unpopular what if he were to hand out leaflets that criticize the developer held the much ridiculed mocked them right that's clearly an issue of public concern but you are using that developer and then criticizing them specifically and what if he just held them out as an example of everything that was wrong with you know environmental and racism some particular rising

speech cannot be the answer to why is it that contribute to public discourse there are times of speech clearly does go beyond the pale and is a public discourse anymore because not because you're talking about a particular person or protesters target people and that is to stand on the middle of the field and talk to nobody about nothing in particular you're protesting a particular thing or a particular action he was abducted your audience in mind when the supreme court was talking about targeting and targeted protesting and talking about how difficult and people that was it was talking to people who are literally trapped in their homes by the notion of a protester and they have no wood a place of refuge a homeless special it does the place that you can go to and you know like not to be targeted there ain't but when you go out in public you don't always get to be free of all of that you serve a right to be free from disruption and harassed lent and threats and violence they don't necessarily have to view a right to be free from offensive speech that happens to use your

identity or someone who loves identity as an example on unless there's something else going on there because we would so enjoy an issue where you know the argument that we make on the state side is that the hole was not the only place that other receive the dignity and respect that you don't have to see this necessarily end if there's any other boys were going to include on the list is probably shorter at least under the court's cases an audiophile and that's a that's a tradition that crosses borders cross says cultures the respect for the rights of burying the dead recognizing the dead at memorial isn't the dead and it's it's really is a sacred setting of it and you can draw a line just around funerals of the court uses to do with relative ease frankly it doesn't open the door no one's known in the case is suggesting that you can go down to the courthouse or you can go down the main street to go shopping massachusetts and in not have to see anybody that might be sent thing you don't want to hear but this is the

funeral so in it is targeted again you know they could get their message out bingo stand on any street corner in lawrence and just all the motorist ago by they can share their message nobody's arguing they can't do that but what we're hearing is they can't go right to the funeral basically know they don't go inside they don't try to disrupt the service per se but they want to be there so that the people attending the funeral will see what they have to say and then they're attacking those people you know so they're not even going to say tell you where they have issues with k u is an institution which they do and hoping all the students and faculty see their message they're going to an event that is really for a deceased person a private event the private family and that's that's what they're targeting and that kind of very focused targeting and the setting that is sacred and unique arguably is what the states are ordering should be prevented here you can protect against a lot of

what you're talking about with a federal statute that prohibits protests all protests within a certain distance of funerals telling someone that they can see you based upon an offensive message that causes emotional distress that cannot be limited only to the funeral said in the wake of the court's work that kind of messaging can be used anytime a protester does something that somebody clicks emotional distress around medical clinics on animal rights protestors in abortion protesters environmental protesters so although i think the facts are in theory the group i don't think that the president that comes from this case a decision comes from this case cannot be limited only to funerals in the same way that a law that regulates where and when they protest can be limited and that really hasn't that i agree though that the laws are easier to sort of jealous a statute that

says this applies only to funerals obviously is limited to funerals and that's what these laws that most states and the federal government passed now say about them and the torah is not without any limits either violent towards teacher and as he minimized ins and the audience the tort of intentional infliction of emotional distress has pretty high standards as professor well so this really is sort of the disfavour toward in the law courts grudgingly acknowledge it but to prove that you have to show intent sure reckless conduct that is extreme and outrageous and that causes severe a stress in the person so i think that tort itself could be read to impose limits are so in other words if you're protesting the phelps is a donor thing outside a courthouse or even outside a school i suspect the courts would not be willing to say that's extreme and outrageous in that setting but in the funeral the argument is it is extreme and outrageous and that is a limitation in the torque is there's some subjectivity to the judgment sure can you be absolutely sure other courts will invoke the torch in other settings

know you probably can't ah but i suspect that the courts could be given the message by the supreme court that any expansion significantly here will run in the first amendment concerns outside of this context the state courts will heed back of advice from the supreme court but i think the torch itself also emphasizes weston's know emphasize with the fall of the tortillas it has to cause severe distress and again that's with snyder prove dear know what do people think he actually did or not is beside the point the jury found it given the forces didn't appeal so it's not just someone who's offended by the phelps is what they do has to cause severe distress and the chords are pretty stingy in finding that standard is satisfied by planets under that torture and i actually do agree and i think most people who try to bring those kinds of lawsuits would do is because i think they would meet the elements the problem is the way that the torch said that as you pointed out it's intentional behavior or reckless behavior base and asked me do

you don't rate as evidence that raises the standard that's a difficult job survey found that in a different case involving intentional motion intentional infliction of emotional distress are made a case involving a public figure and jerry falwell may vary salacious cartoon about his first sexual experience and hustler where he also super intense conflicts in emotional distress outrage is that the way that our emotions work we get anger or outraged because we perceive someone to have engaged in a demeaning offense to our percent and psychologist notices the appraisal theory of motions and therefore we are going to respond to offensive speech if we believe we personally believe it to be offensive and not everybody response to the speech the same way and with outrage and anger because it conflicts with our values and beliefs so the more you're outraged by someone who has said something that conflicts with your personal belief system where you pursue my system

more likely you are to be the person who decides he won a civil the more outraged you are and it has to be outrageous speech basically triggers this the more likely you are to believe that the person who engaged in it intended to hurt you and it is also psychological sort of reinforcing phenomenon i do think where you will lose its because you may not have the emotional distress but that's not going to keep you from one to bring that lawsuit and it's the threat of that lawsuit the very fact that it could be brought up that core worries about with these kinds of tort lawsuits because that the europe that you might be a subject to it and you might lose it will cause people to change their behavior and not talk about content as a public debate if i am or any one of those television personalities right now on television who held that people who ridicule every day ranging from jon stewart stephen colbert glenn beck bill o'reilly

or rush limbaugh i would be very worried about the harp in this case because those people were keenly across the political spectrum hold people up to public ridicule they do it sometimes for humor sometimes they do it because they are really outraged at what people do you know that the torch elements are our range lieutenant an emotional distress was outraged at funerals i mean it's any kind of outrage and that's a very subjective response that anybody can have once that demeaning offense to your person response kicks him like to us it's both of your constitutional scholars and i picture your thoughts on what is going to happen with this case will the court just address the broader question of tort liability in the appeal or will the court potentially expand the scope of its decision to get into some of the regulations that a number of the states have affecting these kinds of protests world records you never know it certainly could decide this case

just focused on the tort liability and even within the part one of a couple issues were could you could make the opinion more narrow or broader than they awarded what it has five votes to do it from the state's perspective would love to have the court say well whatever they say about the torrance it even if they say you can't impose liability the statutes are reasonable time place a manner regulations that by large will probably withstand constitutional challenge but there's no reason they have to say that now know that said it doesn't mean even if the coral to address broader issues individuals may it was a metaphor for example in the gray case it would be the pledge of allegiance case where that the challenge was to the under god phrase in the court denied to decide whether there was a call from an establishment clause point of view injecting religion into this public observance of because they decided the father of a daughter who was objecting to her saying

it didn't have standing to actually bring the suit because even have custody over the mother dead bought that didn't stop several justices from sang but here's what we think about the under god in the pledge of allegiance so you know they have a green considerable discretion whether they addressed some of these issues i will say the standards are certainly not directly implicated in this case that's not what this case is about so i would be shocked if the court said oh those statutes are all great abbott maybe will give at least some hints or some suggestions that that is a legitimate thing for the city or even one or two justices you say well maybe the majority strikes down for a while in this case who we will emphasize we think the statutes are still probably valid below the hall from the state's perspective but i do think that the corps one family decide at least one of these tort issues obviously that can stick to that i would be pretty surprised if they what

two for a feel on the statutory issues on although i did they do it what they do isn't the signal that because there are statutes out there many of which are constitutional and there's debate about several of them but a lot of them would be fine images little tweaking because the statute you're there this kind of tort liability is not something potentially if they decide to go against liner that's why were going against them i think that might be something there is an issue the invasion of privacy issue that we haven't taub taught on as much involves the targeting argument that steve is focusing on involve something called a captive audience doctor and that if the court does ever hear one of the statutory cases a challenge to the statute that will be front and center in that challenge and so to some extent if they decide the invasion of privacy issue and discuss the captive audience doctrine they might get something that's relevant to the statutory cases but on a little talk about them directly both of your own different sides of this issue anyhow how i would be duty judge a successful from your point of your successful decision by the court or

that they want to look like that well it may not be that different frankly you know from the states perspective the ideal would be to at least have the possibility of application of declared intention pushing toward a palliative they find is a problem in this case are there still has to be another trial was a lot of argument about the particulars of the jury instructions of what went on this case but even if we lost that issue indications that the statutes are good will go a long ways i think towards satisfying the states now that's wearing as a friend of the court or are representing the snyder family so my guess is for the snyder family nothing less than victory on the problems is victory but i think for some of the media on their side as long as there are ways to at least if you can't get rid of them at least keep the phelps is inappropriate places at appropriate times that would be a significant victory and i actually well i would say that i'm not sure i want the court to say anything

about a protest settings that i wouldn't i don't want them to win outright say that there's anything wrong there and i would say that for another day so in that sense i do think this case is it about this and i wouldn't want them to go too far afield i would my sense and what the win would be if you got that i'm also a friend of the court brief is we're not representing as neither the parties is that the intentional infliction of the invasion of privacy claims when they're applied to speech especially says offensive messages it's not that you can't sue based on intentional infliction invasion of privacy is that the court has to use different better more objective standards so i'm not sure that even i am totally in line with what the felt see is a clean land and what i'm trying to do is get the court to create better law that's in mind voters prefer more

clear law that someone with pictures produce so i would say that i did it mr snyder needs to lose this case but my hope is that the core will announce standards that make it clearer under which the conditions are that you can sue for invasion of privacy and intentional fortunes and that they can get those conditions do not involve the ability to sue based simply on offensive messages can i one last question and will open up here today some ice question that i think is well what are the ramifications of this decision i mean how horton the scale well i suppose that depends on which way it comes out there and i think certainly the argument that's made on on the focus on the cases if they lose this is the end of free speech as we know it how i don't why that takes up that and that there was an image of a goat be happy with that outcome you know there is there is a moment when i read it in this first amendment cases serve that were called in many recall the

camel's nose argument that as soon as you let and intrusions or limitations on speech take place it's the end of the world because nobody's going to be able to talk about anything and that scene is a new and realistic completely unrealistic so again you know if the outcome is that the losses are held liable it's not the end of the world it may be the end of their world but it's not the end of the world for america or for public discourse or were freedom of speech in this country and what standards the courthouse will make a larger difference in terms of our band plays out in future potential cases if the cubs win it's out into the world again we may have state status that we can defend that will ease limit when and where they can do what they do there is the old option of sticks n stones in their words liberated just ignore that phelps is a man that in some ways is the most effective response it's apparently hard for people to do

you know i don't think they would still be protesting general said they hadn't gotten all the attention they had if they win no one paid attention and equipped as long ago and they'd be trying something else so either way i don't think it's the end of the world for for freedom of speech well for the students i agree with that up to a point i do think that if mr snyder were to win on these facts with the standards that he wants it would be a very bad for free speech part because it has the potential to de stabilize really important foundational aspects of free speech and this is where this case really isn't about mr snider or the phelps it's about what the court has said in terms of being able to arm protect offensive speech and really having this are strong antipathy toward viewpoint censorship and the way that this case stands out in high readings are boils down together and technical legal arguments it really does have the potential to undermine a lot of different areas of free speech law because that liability is based purely on offensive messages

and then i think that that is an important point now if the court rule that you can impose liability for intense conflicts of emotional distress an invasion of privacy in certain instances and hear the other objective factors you have to show and that it remains and back to the district court to see if in fact those factors existed in this case i would not see that as a loss i would see that as the court trying to create a speech protective standard now recognizing that there are times when speakers have gone beyond that the pounds of trying to communicate and have devolved into sort of course of the non communicative speech but i don't think on the texas case that that's going to happen and i think if the phelps win and mr snyder loses that it gets its keys in one and it's very rock and a hard place type of situations he's and the profound emotional and traumatic experience and unfortunately he would

not be the first or plaintive to find out that there isn't always a remedy for the wrongs that at and t and sometimes the courts reasons for that and was audience but in this case there is overarching free speech more they go to your are questions unanswered if you have a question please raise your hand only andrew would you please calm and both of you on whether you expect any time in the near future that we may be able to see televised the proceedings of the supreme court as cheryl so i i i think that as you are justices come on to the court there are more amenable to that bird a political prodding still you begin to be immediate but i do think you have a string of justices appointed to the court who actually

understand the internet who've grown up with computers and you know just more technologically savvy i don't think it will come because senator specter introduces a bill and then there's going to be resistance on their part to sort of as a matter of dignity but i think eventually we'll get there although no one would have thought they'd do things like releasing audiotapes of the arguments immediately or even brought letting those streamed over the internet as the arias are going on those could've been done easily already without any intrusion and they haven't done so there is the resistance and i've heard a lot of explanations for why the resistance one of them gets that's most convincing without really justifying it is that because they are so collegial in the sense the nine of them that unless all might agree to do something they're not going to do it so if there any holdouts who don't wanna cameron the koran that whole lot probably will veto it happening another justice souter his set over his dead body is gone so that the dough is no longer present but there may be others who more less

share his sentiment and i think until all minor really on board that will go the streaming would be great released the audio streaming because then you'd at least get some sense of what it's really like to hear an argument and the banter it's not the same reading a transcript immediately surrogate justice places something audience lapse how it don't get reveal her justice scalia or four you have no sense of what exactly was he just did to make you know the entire audience laugh that whoever is setting a problem is that really oh yes my question is for steven mcallister you said that it's unrealistic that a decision in favor of snyder would results in like the end of the world the free speech but like so like where you think the line is on and where the chilling effect is an important issue but somewhere less than the end of the world for free speech but where it's still important well i have a couple of couple answers to that long if you look at the research can say what everyone already has an old could articulate all that is visceral of the states perspective

it in a we must use of the word funeral fifty times in the brief time and were trying to draw a line around funerals as unique setting well because we realize is certain about any protests that might take place and a place the court will never accept that ah but you know the americans would come at this and i suspect that when we all grew up in this country for the most part if you were born and raised here and i was it's a sort of part of ingrained in us that people say all these things to do all these things and there's really no regulation of that that's a promise that doesn't fly all around the world and in many of our western allies for example in germany or france or canada our neighbors to the north it's a crime for example to to say certain things such as that the holocaust never happened to say i don't believe that ever happened it's a lie it's a crime and you can actually be prosecuted for do the trees have no free speech i don't think so i mean they're pretty open societies wants a public discourse but this is

the american tradition that i'm not necessarily saying i always disagree with that in this case i guess i do i'll buy the you know the american traditions seems to be anything else and we just sort of throw up our hands and say whatever and i urge people that's to vet his speech you know people got a bill to say it and what i'm questioning and what i think this case raises the question whether that is necessarily the best in result and a surly not compelled by the first amendment if you look at the language of the first amendment as talks about congress not making any law but the bridge's the freedom of speech what that means is then in the hands of the supreme court for the past two hundred and twenty years it's not written down whether you can protest the generals or not the court has to decide looking at all sorts of history and principles and cases and i guess what i'm raising the question is is the american view on this for supporters say with confidence it's not the only view among civilized

nations around the world is that the best you maybe it is but i think that's the kind of question his case raises maybe it's not touch on that point there and this is forever was to attack it on what the court does go ahead and legislative end agree that there needs to be some regulation over funerals police him some wiggle room or some discussion as to what the funeral or cemetery is for instance because i was actually out on nine eleven a six covering a story in shades of pennsylvania after that wagner richard nine eleven and you know the family was there protesting all technically that's not a cemetery where fuel i think a lot of people would agree it's it's pretty close and many people view is that and i think here too a separate that question and detect the street or technical engineer question is when the state's drop their legislation about what is a funeral or cemetery they attacked usually do you define what is a funeral or a

cemetery and anderson specifically this these laws are specifically designed to deal with that if they don't define it almost always if that was challenge the core will try to take the plane meeting a funeral a dictionary midi or something along those lines and they're not going to extend it but then the second part of your question proves my point though which is you can't really carve out things as sacred and say that's the only thing we're going to do right funerals are they people deserve dignity they deserve respect they deserve privacy they deserve not to be disrupted but you know there's so many things that we can carve out a sacred of funerals are obvious and i think fuel statues exist like many steps to run hospitals and schools in order to try to prevent a noisy disruptive speech those are fine but to say that we can carve things out as sacred and stop speech altogether you have nine eleven ceremonies you have you know ground zero right at his home

not mosque or whatever it is not at ground zero but at ground zero that whole issue is really about how sacred that area is there's a point at which that argument is also never ending how far do you take it and so the kinds of regulation that you have arm around areas and the reasons for which you have a really important and a funeral protest at its control in that vapor have it all protesters within a certain distance but this allowed him to protest what they're trying to do is prevent noisy disruption and interference harassment those types of things they're not saying we're regulating you because of your message the phelps motivated the statutes but they don't only apply to the phelps we forget that sometimes in fact there's a really well known case out of michigan that has nothing to do with the phelps a message he was an anti war protester came about because when peaceful protests i should say it's not just the folks that get caught up in all this question that they're really out of it hello locally that helps protest the dole center at the leed center and actually law school's

graduation robe this decision affect the pope's protesting any of those events i don't think so you know i certainly our position is that we're not we're not talking about that condescending understand professor well what i suppose you could make the argument that standing outside the graduation ceremony that's that sacred and should be protected as well were not making that argument we are drawing the line around the funerals so i wouldn't expect even a victory in this case to stop them in those other venues mr couser and if you're forty or focus on funerals minor stay alive the arguments that their they'd make years that they've been making is taking public and private is that the only reason they went back there there were they go other places around the country is because the funeral notices put in the newspaper that seemed like a simple argument that i'm

retired of water to sprinkle address something of that to that kind of that nature whether the court order as it i don't know they do make that argument in the roosevelt to say well this isn't even a private funeral because they put a notice in the paper with the address in the time and therefore it's basically open anyone and i suppose in a sense that's probably but it's not public in the way that for example that the grounds in front of a school or in front of a courthouse are lots of other plays k u campus would be public and certainly the family's intention is to mourn with their friends and so forth and there may be people who come to show their sympathy but in my view that doesn't turn it into a public anything goes sort of them is o a lot of first amendment jurisprudence about the nature of the form in which the speaker is speaking and it would not turn was generally viewed as a private ceremony into a traditional

public forum for example like the the town square or the street corner sort of setting but yes the tail says make that argument whether the coral say anything about it and another felt as mike a lot arguments in the hen every event and a lot of them frankly are based on their view of the world in their view of the facts in their own way of trying to lawyer li justify what they do and i don't know that the corps will get down into a lot of those sort of nitty gritty perhaps morally covering some ways arguments that the drug and i would just say that stephen eye on other opposite sides gave a surprise harry manx and i think there was one here but i don't think it's gonna be because anyone would consider that ceremony anything other than private eye even when you go out in public here able to create relatives sons of privacy and other public notice and they're doing that and let friends and family know and they certainly would have the right to exclude unwanted trust passers are visitors and i think they would consider the pumps to be that for the ceremony

itself i think is easily off limits both from tort law and from free speech or because you have the right to associate with people that you want to associate with and to exclude others so i mean but phelps would be on very shaky ground at that the question is can they stand outside a certain distance away ryan try to reach people is becoming an armed service or minutes of it and it's i think that would be a non whether it will only mention this that one of the motives i think bankrupting the belts and i was wondering with free speech cases like the aclu are present i would step in and work affect the stigma that builds family has the free speech issues and what groups are doing to defend free speech even though it's clearly an unpopular family an unpopular actions and i think there were seven amicus briefs filed on behalf of the phelps reference a number filed on behalf of mr snider and the recent hack at phelps were filed by a wide range of people that have read the court briefs and one that i ground up a group of people in scores of first amendment

law price of people who's really felt as though there was real danger to the first amendment lawyer and the aclu did in fact i'll brief there were media organizations that filed briefs and the rutherford institute i think which is a think tank called a brief eugene volokh who is one of my college at ucla you actually in iraq completely opposite ends of it it's political spectrum so we should say that these are not partisan science and also filed a brief on behalf of bell yeah although i do think that do a much are the forces work well you know most of the play well with others and i think they may have had offers of more help with their cases and wells which they don't except our project because they have the other family lawyers and so at some level they want to do this themselves and it's also interesting that there are there are groups sued and make a script to file briefs in the case saying we don't support either side and there is an usual number of those in this case and in a major for but that's an unusual number

usually do the images come in the center on the side room outside but their search for a set it well look we're not really supporting either party and if you look at their previous a lot of what's going on is assign guilt in any way associate us with those people but we think there are or speech issues that are important air and so there is a sense writing some of the meteor very uncomfortable about who they're supporting on the phelps out of the case and so there's significant efforts in this case you don't typically see to distance oneself from the actual party that in some ways you really are doing and support him eric j settlers bridge was absolutely like that there is one brief that clearly he had an interest in it was absolutely a live with phelps and he refuses to actually say that that's what the case was that he is brief clearly showed that we're hearing should that the burning of the qur'an be considered as sacred freedom of speech i've

gotten close to my ten times to me to decry be something that should be considered off limits yes well the flag isn't anacortes said that i then bring flight is a political statement and unless you can show that it's done under conditions that are likely to win that are intended to unlikely to incite him in violence or that are directed at another person's in such a way that it's going to cause it's such an insidious as an insult in such a way to cause them to fight back which would fall into fighting words doctrine then you can't punish burning the flag because it's almost up that i was a political statement unless you're just punishing was arson that burned the koran does i mean most of the commentary i've seen and this is my son's wells the burning the koran thousand to that same category that as a general rule you're doing is a political statement but if it's done under the conditions that fall within the

incitement of arm off the violence or fighting words are certainly would be punished i do think that it probably it's a lot closer to home in the flight i know many people are offended by the flag but at least everyone understands that is usually stable against the government we burn on your burning something that is the very core of another person's religious faith and that could really cause lots of problems are a bit more likely to fall under the fighting words daughter's probably more likely to incite unlawful activity and it could also make it more likely to incite much because emotional distress that at least technically independent of the same sorts of protections that you see the flag burning so now i wouldn't consider sacred in the first amendment says although clearly as in the religious sense and i would send it might've been two on that they're targeting in the context in which it occurs the minute someone someone runs a flag and a public square these are deemed to be protesting the government disagreeing problem with their own policies and would bring a chronic are expressing disagreement with islam in general or something that the court is going to see is

protected know you go to a muslim families house and you go in the front yard and you pile up a bunch of crohn's and you taunt him when you hold signs a new bar now that may be a different case and the core actually had a case from virginia several years ago where was the burning across a n and it's a very interesting case because the court really wrestled with that sort of intimidation at least potentially given the historical significance of a burning cross in the targeted audience in some instances being often african americans the courts have been at this this could be a crime if certain circumstances are true if you design a public square going out probably not but when you start targeting people in using that isn't as a means of intimidation effectively it may lose free speech tradition and that's part of our argument is that that's really what the forces are doing is targeting private individuals and signs and things that are not just you know thank god for dead soldiers but also god hates you and you're going to hell and then the update on the website is much more

about the snyder family in particular i disagree with your example the cars that that that example by bunning caught up one actually becomes intimidation or threats and bread is another at categorical but the core cause low value speech like fighting words or intentional and simon of the unlawful activity that speech is not intended in any way to communicate anything other than fear it doesn't contribute to public discourse and so that targeting is that i'm different from targeted protests is targeting non communicative at an idea is it and i don't think that i just have to think the differences between your argument and the koran burning argument exactly what it was very good one which is that unfortunately target someone with signs and in mice there is some reason to think that there's a threat or something else going on there was really just nothing but the fans are unfortunate consequences as a result of that offense they will christie thanks mara and then as you just heard is nothing

sacred snyder he felt and free speech a panel discussion at the university of kansas dole institute of politics it featured steve mcallister a professor at the university of kansas law school and the solicitor general of kansas who filed out friend of the court brief on behalf of the state of kansas and forty seven other states we also heard from christina wells a professor at the university of missouri law school specializing in free speech issues wells filed an amicus brief on behalf of scholars of first amendment law bill lacy director of the dole institute moderated the panel september twenty seven two thousand ten the us supreme court will hear oral arguments in snyder be felt this wednesday october sixth for more information about the case you can go to the supreme court website debuted at debbie that supreme court thought of you can also find out more at scotus blog that daddy daddy daddy you that s c o t u s b l o g dot com i'm kay macintyre keep your present is a production of kansas

public radio at the university of kansas