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Home Archive Volume 61 Volume 61, Issue 2 Funeral Protests, Privacy, and the Constitution: What Is Next After Phelps?
Funeral Protests, Privacy, and the Constitution: What Is Next After Phelps?

By Mark Strasser | 61 Am. U. L. Rev. 279 (2011)

In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a military funeral. Although the Court asserted that its holding was narrow and the legal issues involved were straightforward, this Article argues that Phelps ultimately raises more questions than it answers and almost guarantees increased confusion in First Amendment jurisprudence.  The Court in Phelps explained that the First Amendment prohibits tort damages when the comments at issue involve matters of public concern, yet failed to explain whether private speech that was juxtaposed with public, political speech also warranted the protection of the First Amendment. The Court also neglected to provide guidance on how its holding fits into the current defamation and privacy jurisprudence; in addition, it left unanswered pertinent questions about the constitutionality of a growing number of funeral protest statutes. Lower courts are likely to feel frustrated by this decision and, consequently, a relatively clear area of the law is likely to become muddled.

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