Grappling with the Constitution.

The Supreme Court is hearing oral arguments in the Phelps v. Synder case today. The case began in 2006 when US Marine Matthew Snyder was killed while serving a tour of duty in Iraq. At his funeral, Rev. Fred W. Phelps Sr. of the Westboro Baptist Church and other members (mostly family) came from Kansas with signs that read “Thank God for Dead Soldiers,” “God Hates Fags” and “You’re Going to Hell.” Phelps believes that God is punishing America and especially the military for tolerating homosexuality.

Well, needless to say, Matthew Synder’s father was outraged and sued Westboro Baptist Church. He said their protest invaded his privacy and was an intentional infliction of emotional distress. When the case went to trial, Albert Synder prevailed and was awarded $10.9 million dollars. The judge reduced the award but upheld the verdict. However, the decision was reversed on appeal. In reversing the decision, the U.S. Court of Appeals for the Fourth Circuit ruled that the church’s speech was protected. Their reasoning was that it involved matters of “public concern including the issue of homosexuals in the military” and “the political and moral conduct of the United States and its citizens.”

Some people are arguing that a special exception should be made for funerals since they are especially private. But as Constitutional Law has taught me, once one exception is made to a fundamental right, it begins to get chipped away and makes future exceptions much easier as well. For this reason, it is unlikely the Supreme Court will find in Synder’s favor. More so, the Supreme Court already ruled earlier this year that incredibly disturbing videos of animal cruelty are protected as free speech in a 8-1 decision, so a new category of protected speech is unlikely in this case as well.

Yet it has me thinking. In light of all the recent suicides of young, mostly gay, bullied kids (one as young as 10 who took her life in our own Boston community), our country is coming to realize the power of hateful speech. These kids decided to take their own lives because they were bullied relentlessly and the pain became so unbearable that they felt that living was too much to bear. And when we hear about their deaths, our nation is outraged that something wasn’t done for them. Someone should have reached out and protected them at school, especially. It’s easy to relate to Synder’s case and feel that he should prevail on his claim for intentional infliction of emotional distress. It makes me wonder where the balance between that truth and our need to protect our freedom lies?

As a person who was bullied for being out in high school, I know how profoundly painful it is. But as a law student, I’ve also learned how important it is to uphold our fundamental rights and how even the most justified exception, puts those rights in danger. I want Synder to prevail in this case, I really do, but I might not want the next exception to prevail on theirs’ and that’s the difficulty of case law. Making decisions on a case by case basis isn’t really an option when precedent weighs so heavily on our future.

I’ll be keeping a close eye on this case and will be really interested to see the outcome and reasoning behind it. I’ll also be interested to see how the invasion of privacy issue plays out in Rutger’s student, Tyler Clementi’s suicide as those charges move forward.

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