The Massachusetts teacher refused to let the lad display his flag drawing out of fear it would offend a classmate who is a Jehovah's Witness. Little Frankie Girard drew the flag to honor his brother, whose serving in the military. The kid's dad complained that his son's rights had been violated. Meanwhile, a military unit in Iraq has displayed the flag for Frankie. http://www.youtube.com/watch?v=PsySOsYyzks
Two decades ago, the Supremes COurt ruled that we have a constitutional right to burn Old Glory if we so desire.
United States v. Eichman
496 U.S. 310
(1990)
After this Court held, in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342, that a Texas statute criminalizing desecration of the United States flag in a way that the actor knew would seriously offend onlookers was unconstitutional as applied to an individual who had burned a flag during a political protest, Congress passed the Flag Protection Act of 1989. The Act criminalizes the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a United States flag, except conduct related to the disposal of a “worn or soiled” flag. Subsequently, appellees were prosecuted in the District Courts for violating the Act: some for knowingly burning several flags while protesting various aspects of the Government's policies, and others, in a separate incident, for knowingly burning a flag while protesting the Act's passage. In each case, appellees moved to dismiss the charges on the ground that the Act violates the First Amendment. Both District Courts, following Johnson, supra, held the Act unconstitutional as applied and dismissed the charges.
Held: Appellees' prosecution for burning a flag in violation of the Act is inconsistent with the First Amendment. The Government concedes, as it must, that appellees' flag burning constituted expressive conduct, and this Court declines to reconsider its rejection in Johnson of the claim that flag burning as a mode of expression does not enjoy the First Amendment's full protection. It is true that this Act, unlike the Texas law, contains no explicit content-based limitation on the scope of prohibited conduct. Nevertheless, it is clear that the Government's asserted interest in protecting the “physical integrity” of a privately owned flag in order to preserve the flag's status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with the content, of free expression. The mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals. The precise language of the Act's *311 prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms-with the possible exception of “burns”-unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's **2406 symbolic value, and since the explicit exemption for disposal of “worn or soiled” flags protects certain acts traditionally associated with patriotic respect for the flag. Thus, the Act suffers from the same fundamental flaw as the Texas law, and its restriction on expression cannot “ ‘be justified without reference to the content of the regulated speech,’ ” Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333. It must therefore be subjected to “the most exacting scrutiny,” id., at 321, 108 S.Ct., at 1164, and, for the reasons stated in Johnson, supra, 491 U.S., at 413-415, 109 S.Ct., at 2544-2545, the Government's interest cannot justify its infringement on First Amendment rights. This conclusion will not be reassessed in light of Congress' recent recognition of a purported “national consensus” favoring a prohibition on flag burning, since any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment. While flag desecration-like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures-is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
If desecrating the flag is protected by the Constitution, how is it possible that displaying it could be forbidden? The answer, I think, is that it can't be... even if its display does offend somebody. To the contrary, more recently, the Supreme said that even the most offensive speech remains a sacred right:
Snyder v. Phelps
131 S.Ct. 1207
(2011)
For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military. The church's picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs-stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You're Going to Hell”-for about 30 minutes before the funeral began. Matthew Snyder's father (Snyder), petitioner here, saw the tops of the picketers' signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.
Snyder filed a diversity action against Phelps, his daughters-who participated in the picketing-and the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech. The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro's statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.
Held: The First Amendment shields Westboro from tort liability for its picketing in this case. Pp. 1215 - 1221.
*1211 (a) The Free Speech Clause of the First Amendment can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L.Ed.2d 41. Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708. Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” id., at 146, 103 S.Ct. 1684, or when it “is a subject of general interest and of value and concern to the public,” San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410. A statement's arguably “inappropriate or controversial character ... is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315. Pp. 1215 - 1216.
To determine whether speech is of public or private concern, this Court must independently examine the “ ‘content, form, and context,’ ” of the speech “ ‘as revealed by the whole record.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S.Ct. 2939, 86 L.Ed.2d 593. In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all aspects of the speech. Pp. 1216 - 1217.
The “content” of Westboro's signs plainly relates to public, rather than private, matters. The placards highlighted issues of public import-the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving the Catholic clergy-and Westboro conveyed its views on those issues in a manner designed to reach as broad a public audience as possible. Even if a few of the signs were viewed as containing messages related to a particular individual, that would not change the fact that the dominant theme of Westboro's demonstration spoke to broader public issues. Pp. 1216 - 1217.
The “context” of the speech-its connection with Matthew Snyder's funeral-cannot by itself transform the nature of Westboro's speech. The signs reflected Westboro's condemnation of much in modern society, and it cannot be argued that Westboro's use of speech on public issues was in any way contrived to insulate a personal attack on Snyder from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that the picketing did not represent Westboro's honestly held beliefs on public issues. Westboro may have chosen the picket location to increase publicity for its views, and its speech may have been particularly hurtful to Snyder. That does not mean that its speech should be afforded less than full First Amendment protection under the circumstances of this case. Pp. 1217 - 1218.
That said, “ ‘[e]ven protected speech is not equally permissible in all places and at all times.’ ” Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420. Westboro's choice of where and when to conduct its picketing is not beyond the Government's regulatory reach-it is “subject to reasonable time, place, or manner restrictions.” *1212 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221. The facts here are quite different, however, both with respect to the activity being regulated and the means of restricting those activities, from the few limited situations where the Court has concluded that the location of targeted picketing can be properly regulated under provisions deemed content neutral. Frisby, supra, at 477, 108 S.Ct. 2495; Madsen v. Women's Health Center, Inc., 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593, distinguished. Maryland now has a law restricting funeral picketing but that law was not in effect at the time of these events, so this Court has no occasion to consider whether that law is a “reasonable time, place, or manner restrictio[n]” under the standards announced by this Court. Clark, supra, at 293, 104 S.Ct. 3065. Pp. 1217 - 1219.
The “special protection” afforded to what Westboro said, in the whole context of how and where it chose to say it, cannot be overcome by a jury finding that the picketing was “outrageous” for purposes of applying the state law tort of intentional infliction of emotional distress. That would pose too great a danger that the jury would punish Westboro for its views on matters of public concern. For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. Pp. 1219 - 1220.
(b) Snyder also may not recover for the tort of intrusion upon seclusion. He argues that he was a member of a captive audience at his son's funeral, but the captive audience doctrine-which has been applied sparingly, see Rowan v. Post Office Dept., 397 U.S. 728, 736-738, 90 S.Ct. 1484, 25 L.Ed.2d 736; Frisby, supra, at 484-485, 108 S.Ct. 2495-should not be expanded to the circumstances here. Westboro stayed well away from the memorial service, Snyder could see no more than the tops of the picketers' signs, and there is no indication that the picketing interfered with the funeral service itself. Pp. 1219 - 1220.
(c) Because the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion-the allegedly unlawful activity Westboro conspired to accomplish-Snyder also cannot recover for civil conspiracy based on those torts. P. 1220.
(d) Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Mathew Snyder's funeral, and its choice to picket at that time and place did not alter the nature of its speech. Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.
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