Horizon, Host: Ted Simons

October 27, 2010


Host: Ted Simons

First Amendment Case


  • The United States Supreme Court has heard arguments on a first amendment case involving anti-gay protests at the funerals of soldiers. Arizona State University Journalism Professor Joseph Russomanno was at the hearing and talks about the case.
Guests:
  • Joseph Russomanno - ASU journalism professor
Category: Law

View Transcript
Ted Simons:
The U.S. Supreme Court is hearing a case that could lead to new limits on first amendment protections of free speech. The issue? At what point does free speech cross the line, causing harm to a private individual? The case involves a private military funeral for a fallen marine. Members of a Kansas church picketed the funeral, spreading their message that god kills U.S. soldiers because America tolerates homosexuality. Here to discuss the case is Dr. Joseph Russomanno, an associate professor in ASU's Cronkite school of journalism. He specializes in media law and the first amendment. Thanks for joining us.

Dr. Joseph Russomanno:
Thanks for having me.

Ted Simons:
This strikes me as a first amendment case where the message is so hostile to so many folks. It's a good test for the first amendment.
Dr. Joseph Russomanno:
It's a classic case where we have a message, a set of words both spoken and on signage that most people find abhorrent and can't tolerate.

Ted Simons:
Who are these people.

Dr. Joseph Russomanno:
The Westboro Baptist church, based in Topeka, Kansas membership has fluctuated between 50 and 70 over the years and almost all of the members are blood relatives and the pastor is the reverend Fred PHELPs and the rest of the membership is mostly his descendants.

Ted Simons:
And the signs we're seeing in the protests, the word "hate" seems to be a common motif. God hates you and America and protesting across the street from funerals, is -- what is -- what's going on here? What is the message?

Dr. Joseph Russomanno:
Well, they believe that there are a lot of issues of public importance they're obligated to speak out on and bring to everybody's attention what these issues are and how god feels about them. And more than that, that by not obeying the word of god, all the rest of us are sinners. And they believe one of the issues of public importance they need to address is the death of soldiers and marines in war and, therefore, they feel, they rationalize that going to funerals that are memorializing a soldier or marine is the appropriate setting for their pickets.

Ted Simons:
And the father of one fallen marine said enough is enough, went to court and got -- what? -- $2 million settlement?

Dr. Joseph Russomanno:
Actually $11.5 million and then reduced by the judge.

Ted Simons:
And then an appeals court said hold on here a second. They can go ahead and do this because of first amendment protection.

Dr. Joseph Russomanno:
That's right. The church appealed to a federal appeals court and the appeals court did overturn and thus, taking us and paving the way to the United States Supreme Court.

Ted Simons:
The issue isn't that these folks are saying and believing it, but they're saying and shouting so close to a funeral, a private affair?

Dr. Joseph Russomanno:
The father of the fallen marine in this case filed two claim, one for invasion of privacy and one for intentional infliction of emotional distress. Those are his two claims. There's a set of facts that there's some dispute about, one side taking one viewpoint and the other taking another, just how close they were and how much they may have invaded the privacy. The federal appeals court records say they were 1,000 feet away from the entrance to the church where the funeral was held.

Ted Simons:
Was it Maryland where this funeral was held?

Dr. Joseph Russomanno:
Yes.

Ted Simons:
If the Maryland state law says you can't protest -- I mean, there's statutes on the books, you can't protest closer than 2,000 feet, half a mile, whatever, for a funeral, a church service, something along these lines, would the case have made it this far?

Dr. Joseph Russomanno:
There are laws in effect and were in effect in this particular case. One of the things about the westboro church membership to keep in mind in trying to understand them as best we can, they are not stupid people. In fact, quite the opposite, very bright. Most of them are attorneys, for example. And, in fact, the attorney who represented the church at the United States Supreme Court is one of the members of the PHELPs family. A member of the church. Part of the point I'm trying to make here is they go to great lengths to find out what the local laws are wherever they're going to picket and follow them to the letter. And so they do everything they possibly can to make sure they're not violating the law as -- as part of their picketing.

Ted Simons:
With that in mind, what does the court do? Because the court sees statute and sees they didn't break the law and also seeing that something might need to get done, but if it is, what does that mean to first amendment protection?

Dr. Joseph Russomanno:
Right, it clear they did not break any criminal law but the plaintiff, the original plaintiff in this, the marine's father, is filing civil law claims. So what does the court do with this? Well, as I heard one of your previous guests say, we're reluctant to predict, especially will the United States Supreme Court and I will follow suit, I mean, I can tell you that the insight of the court -- inside of the court that day, there were questions from the Supreme Court justices to both sides with -- with a lot of doubt about, it seemed to me, which way to go on this case. So I think, based on what I saw and heard, it's very much up in the air at this point.

Ted Simons:
Ok. Let's say we get a decision one way or the other. Implications for free speech in America?

Dr. Joseph Russomanno:
If it's a ruling for the westboro Baptist church saying the first amendment protects their rights, I think that follows a line of cases we've seen previously from the Supreme Court involving controversial, even what we might call hateful speech. Whether it was burning the United States flag, cross burning, the Supreme Court with different memberships in previous years, granted, has said those kind of things are protected. So this would follow in line. If it goes the other way, I think what this court is telling us they're carving out an exception to first amendment protection and saying here is a different kind of circumstances that we hadn't dealt with before that we're saying is -- is sacred and should be protected and the first amendment does not allow for that.

Ted Simons:
You got to be careful, though, don't you? Can you carve something like that out and all of a sudden, a lot of things can fit into that carving.

Dr. Joseph Russomanno:
It's a textbook example of a slippery slope and one that a lot of people are afraid to proceed down.

Ted Simons:
I wanted to ask how you're using this particular episode, this case, to teach your students about the first amendment and the rights therein? What are you telling them?

Dr. Joseph Russomanno:
Before there's a ruling --what can I say, I lay out the circumstances and simply point to the fact that here -- here's another one of these examples of a case that is classically testing the limits of the first amendment. And testing us as a society in terms of how willing we are to accept someone's free speech and the rights to it, even when it's something we personally find abhorrent.

Ted Simons:
Fascinating case and we'll keep an eye on the court on that one.

Dr. Joseph Russomanno:
Thank you.

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