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Phelps Case May Lead to Broad Supreme Court Ruling, MU Expert Says

March 9th, 2010

Story Contact: Nathan Hurst, 573-882-6217, hurstn@missouri.edu

The views and opinions expressed in this “for expert comment” release are based on research and/or opinions of the researcher(s) and/or faculty member(s) and do not reflect the University’s official stance.

COLUMBIA, Mo. ­—The United States Supreme Court decided to rule on one aspect of the debate over freedom of speech when it agreed to hear Snyder v. Phelps this week. Christina Wells, the Enoch H. Crowder professor of law at the University of Missouri School of Law and a leading expert on funeral protests and freedom of speech cases, says the court will decide whether a person has a right to privacy from offensive speech while in a public place. Wells believes that this case will be very influential for freedom of speech law.

“This case has huge implications for where the court is going with the ‘right to privacy in public spaces’ and the ‘captive audience’ doctrines, which have been a big problem for the Supreme Court,” Wells said. “I don’t know what they will decide, but regardless of how the court rules, it will have a huge effect.”

The Snyder v. Phelps case stems from a protest conducted by members of Westboro Baptist Church, led by pastor Fred Phelps, during funeral services for an American soldier who died in Iraq. The protesters stood on public property near where the services were held and spread an antigay message that included their beliefs that God was punishing America for the tolerance of homosexuals. The plaintiff, Snyder, who is the father of the slain soldier, filed suit seeking damages intentional infliction of emotional distress and invasion of privacy due to his exposure to the Phelps’ protest during the funeral.

Wells says an important aspect of free speech debate arises in this case because it is unclear whether individuals have the right to privacy protecting them from speech they find offensive while they are in a public place. Due to the offensive nature of the protesters’ speech, Wells believes the Supreme Court may decide to rule on a much larger scope than free speech activists want to see.

“By choosing to hear this case, which involves a civil suit against the Phelps’ rather than a law regulating funeral protesters in general, the possibility exists that the court, like many people, will respond negatively to Phelps’ offensive speech,” Wells said. “As a result, like some lower court decisions involving Phelps, the court may reach a decision that interprets the law more broadly and less in line with free speech precedents than one would hope. This is a case about whether or not the court can see beyond the content of Phelps’ speech when applying its existing laws. That is not always an easy thing to do. Thus this case has very important implications for free speech law.”

Wells has published one of the most widely-read articles on funeral protests and freedom of speech in the North Carolina Law Review and is regarded as one of the top experts on the subject. To view the article “Privacy and Funeral Protests, visit the following link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1106363#.

Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law. Wells has worked professionally as an associate at Skadden, Arps, Slate, Meagher & Flom in Chicago and as an associate at Heller, Ehrman, White & McAuliffe in Los Angeles. She has been on the University of Missouri School of Law faculty since 1993.

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