No matter what you think about the wars in Iraq or Afghanistan, or war in general, I am sure that you would consider picketing of military funerals obnoxious and reprehensible. Yet our First Amendment protects the right to speak freely and "peaceably assemble", so the government cannot restrain people from behaving in this way.

But can those who have come to bury their dead collect monetary damages from funeral protesters, if the activity has caused them "emotional distress?" The US Supreme Court has agreed to hear a case that will decide this question.

After Marine Lance Corporal Matthew Snyder was killed in Iraq on March 3, 2006, his funeral in Westminster, Maryland, was picketed by Rev. Fred Phelps and several of his followers who contend that "God Hates the USA" for tolerating homosexuality. In addition to placards with that message, others read "Fag Troops" and the like. Moreover, Phelps claimed on his website that the soldier's father Albert Snyder had "raised him for the devil." (1)

Albert Snyder sued Phelps in Maryland and was awarded a judgment of $5 million for invasion of privacy and "intentional infliction of emotional distress." The Fourth US Circuit Court of Appeals threw out the verdict on First Amendment grounds, noting that the signs did not specifically refer to plaintiff Snyder or his son. (1)

How should the Court rule, and how will it rule?

Although I believe that defendant Phelps and his associates have the right to express their crackpot views in public, I also believe that they bear the responsibility for the foreseeable consequences of their words and actions. Just as the protection of free speech does not bar victims of libel and slander from recovering damages, so too should it not bar claims…