STEVE INSKEEP, host:
A court case is shining a spotlight on the limits of what you can say, and jury says a Kansas church has to pay more than $10 million in damages for protesting last year at the funeral of an American Marine killed in Iraq. Church members waved signs saying, Thank God for Dead Soldiers.
The protesters have carried out similar demonstrations at soldiers' funerals nationwide. They believe the war is God's retribution for America's tolerance of homosexuals.
The Marine's father went to court, seeking retribution of a different kind, which led us to a question we put to Rodney Smolla of the Washington and Lee University School of Law.
How does the First Amendment apply to a case like this?
Mr. RODNEY SMOLLA (Dean, School of Law, Washington and Lee University): The issue really is not whether the church has a constitutional right to express its message, for clearly it does. The much tougher issue is whether it has that right at the funeral of a fallen service member.
INSKEEP: They showed up, it was a protest. They were holding signs, that's what's the issue here.
Mr. SMOLLA: Right. And we have public spaces and private spaces in our society. And the free speech rights that we all enjoy in our public, spaces don't always give us the right to intrude into the private spaces of others. And a lot will turn in these cases on exactly where the protesters assemble, whether they are on the cemetery property or protesting from a public space, whether the sound of the protest is amplified so it interferes with what is being said, whether it takes place on the highways that the funeral cortege may have to pass by, where there's a fleeting image of these offensive messages, or whether it interferes in a more direct sense.
INSKEEP: So where is the law in some of those examples you gave? The fleeting glimpse on the highway - the protesters alongside the highway, is that fine?
Mr. SMOLLA: Yes, it is. I think courts are likely to say that this group does have the right to propagate its message in those spaces, but that there is a line, and that line, I think, will be drawn in close proximity to the funeral events. It will be drawn with regard to whether you can see the funeral protesters from the place at which the body is being committed. That sort of division, I think, will divide the public space from the private space.
INSKEEP: Just to understand where the law is, there was a famous case centering on a march by Nazis in Skokie, Illinois that seemed to settle the question of whether you could say just about anything at a protest. And the answer was yes. You could say just about anything. Is it that that issue is settled and it just gets down to the question of where and how?
Mr. SMOLLA: The answer is yes. The Skokie incident was one of many Supreme Court cases that have held that, in our society, hate speech, as offensive as it may be to all people of goodwill, is nevertheless allowed to go uncensored unless you commit some more palpable offense like invade someone's privacy, libel them, incite someone to riot, threaten them with violence.
And even though what the church engaged in here does appear to fall within the realm of hate speech. They have a right to engage in that hateful speech unless it invades someone's privacy.
INSKEEP: And the court found here that's an invasion of privacy.
Mr. SMOLLA: A jury found that it was an invasion of privacy, and the interest in question on appeal will be whether the First Amendment allows us to treat what happened here as the kind of invasion of privacy that trumps free speech rights.
INSKEEP: Hasn't this very church and its protests inspired some specific laws to protect funeral state laws?
Mr. SMOLLA: Many states have enacted these laws and Congress has also enacted a federal statute, and it was precisely the protests of this church that triggered those laws. And what courts will be struggling with is whether these are laws directed at the message of the church specifically, which would make them unconstitutional, or whether they are more general laws that simply preserve the human dignity that surrounds a funeral. In which case, as long as they allow some channel for the protest - in streets, for example, outside of the cemetery - I think they will be upheld.
INSKEEP: Rodney Smolla of Washington and Lee University, thanks very much.
Mr. SMOLLA: My pleasure.
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