This morning the Supreme Court handed down its decision in the case of Snyder v. Phelps. The case involved the Westboro Church, which is infamous for its protests at military funerals. The media publicizes the anti-homosexuality aspect of their protests, but the Church chose the Snyders also because his family was Catholic and his parents divorced and they view the Church as a monstrosity that encourages idolatry.
The Court’s 8-1 decision with the lone dissent by Alito sided with the Westboro church in a limited opinion. Although the case might have some interesting effects for First Amendment law in general (the protection of the 1st against suits of intentional infliction of emotional distress even when directed at a private figure if the speech is directed at matters of public concern if I read it right), it questionable whether this is the last word. The Court did not have the opportunity to consider whether laws restricting the time, place, and manner of protests surrounding either military funerals particularly or funerals more broadly are constitutional. Legislatures seem keen to pass such laws, and in fact in Maryland such a law was passed after the Snyder funeral.
Discerning where the Court will go is difficult. I suspect such laws will be upheld. The majority seemed particularly concerned that juries would be unable to fairly determine whether conduct was outrageous in tort cases (like infliction of emotional distress), but this concern would not be applicable if there was a truly content-neutral regulations about the manner of protesting around funerals. Of course, the Court would be rightfully concerned whether such regulations were in fact truly content-neutral but I think a legislature could make a strong argument if the statute is written well enough. Moreover, Alito’s well-reasoned dissent provides the strong emotional basis for such laws: namely, families at funerals are innocent parties who are particularly emotional vulnerable, and the protestors are exploiting their grief to get air time in a most callous and unchristian way.
So like many times when the Court hands down a ruling, the verdict is that very little has been settled and more decisions are to be expected.