Thursday, September 30, 2010

Around Town: Does one right trump another?

On Oct. 6, the U.S. Supreme Court will hear argument in the case of Snyder v. Phelps. This involves the issue of the Westboro Baptist Church's picketing military funerals. The church used signs that expressed their pleasure (and, supposedly, God's) with the deaths of the fallen.

Westboro Baptist Church. Totally lame. Unsavory.

One issue in Snyder v. Phelps is the interplay between the First Amendment's free-speech clause and the rights of freedom of religion and peaceful assembly.

Another issue is whether free speech trumps emotional distress.

Members of the Westboro Baptist Church have a right to free expression in their protests, but their expression caused emotional distress to the family of Marine Lance Cpl. Matthew Snyder.

The surviving family members of Marine Lance Cpl. Matthew Snyder asserted that they were a "captive audience" at his funeral, entitled to state protection from unwanted communication from the Westboro Baptist Church. The family was faced with the choice of leaving the funeral or listening to the hurtful remarks from the Westboro people.

One of the amicus, or "friend of the court," briefs in Snyder v. Phelps addresses the special nature of a military funeral. The brief was filed by the John Marshall Law School Veterans Legal Support Center & Clinic and the Chicago School of Professional Psychology. It asserts that a military death is unique and that failure to protect the family at the funeral can disrupt the grieving process.

This argument also has implications for the Park51/ground zero mosque debate. The military funeral is a sacred space. It is hallowed ground. Ground zero also is a sacred space. Sacred space trumps the right of the Westboro picketers to free expression and should inform the mosque debate as well.

How do we, as a society, resolve these competing interests of freedom of religion and freedom of expression?

In 2002, a California appellate court held that the First Amendment does not permit a person to disrupt church services. In Church of Christ in Hollywood v. Superior Court, the disrupting party, a woman named Lady Barile, was a congregant of the church. The appellate court held that she did not have a right to disrupt the services. The church's right to conduct services trumped her right to free expression.

Last Saturday, the ninth anniversary of the 9/11 attacks, a man at ground zero burned a few pages of a Quran. He said, "If they can burn the American flag, I can burn the Quran."

He was correct about one thing. In 1989, the U.S. Supreme Court upheld the right to burn or otherwise desecrate the American flag in Texas v. Johnson. The act of burning the flag by protesters from the Revolutionary Communist Youth Brigade at the 1984 Republican National Convention was treated as symbolic speech under the First Amendment.

We are left with this dilemma: The Imam has a right to build the mosque near ground zero. The protesters have a right to burn the flag. Other protesters have the right to burn the Quran.

They have the right, but should they? And should there be limits in time, manner and location?

Despite the right of free expression, guaranteed by the U.S. Constitution and its amendments, one can only hope that cooler heads will prevail.

Many of the bereaved families of the victims of 9/11 have not found closure. Nor should they be expected to "get over it." It is too soon.

One can only hope that the U.S. Supreme Court, when it decides Snyder v. Phelps, will also address these issues of bereavement, funerals and public space.

I bet the Founding Fathers (and Mothers) never envisioned this.

ANITA SUSAN BRENNER is a longtime La CaƱada Flintridge resident and an attorney with Law Offices of Torres and Brenner in Pasadena. E-mail her at

Around Town: Does one right trump another? -

Around Town: Does one right trump another? - La Canada Valley Sun

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