Law Life: A big fan of the First Amendment

By Craig Napier The Daily Record Newswire Somewhere in my upbringing I had the romantic notion that my grandfather from Kentucky would spout vulgar cliches of wisdom at me while sipping bourbon on some summer evening porch. Of course, this was not the case, as my Kentucky grandfather passed away before my dad was a teenager. That was more than 10 years before I was even a thought or my parents were even high school sweethearts. "Even the sun shines on a dog's backside some days" would have certainly been one of the loving tidbits of traditional wisdom the ol' man would have dispensed. He would have used a word rhyming with gas instead of backside, but you get the gist. This phrase has been on my mind a lot this week as I read the Supreme Court's decision in Snyder v. Phelps. I have been a "fan" of the Phelps family for years and had followed the tort case since seeing the $22 million dollar award. From the start I thought the case presented very similar issues as the Hustler v. Falwell case of Larry Flynt infamy. I think the First Amendment jurisprudence has outlined protections for many areas, but speech about public people, issues or politics has generally been difficult to limit. It's clear the First doesn't really mean "no law" as the plain text of the amendment's language indicates, Justice Hugo Black famously espoused, and I had wished for many young punk-rock years. However, it is the Phelps family that has brought the First Amendment to the forefront of the news once again. I am a "fan" in a certain sense. I don't want to oversell the fan bit here, but I do think the repugnant little family from Topeka, Kan., are good at getting themselves into the national spotlight. Everything they do and say while the spotlight is shining on them is repugnant and contrary to every strand of DNA I have in my body, but all the while they're like a train wreck. While your knee-jerk reaction is to turn away from the impending collision at the last moment, it is impossible to do so because it's too fantastic to ignore. I know, maybe that's my own sickness, but I watch, I pay attention, and they interest me even though I revile everything for which they stand. But wait -- on the horizon like a massive caped crusader -- it's the Missouri House of Representatives, passing a funeral protest bill last Tuesday. Like clockwork, which I'm sure wasn't Orange, but probably ill-timed in light of the Supreme's Wednesday announcement that the speech was protected. The Missouri bill really just puts time and distance requirements on the protests, which have been upheld in some cases and struck down in others. Seems to me it's reasonable to restrict how close the protesters can come to a funeral, but I am not sure limiting them to an hour before and two hours after is reasonable. I think the law is clear here that the government can lay reasonable restrictions on how close or where you protest for public safety reasons, but the limitations are subject to strict scrutiny and will only be upheld if they are necessary. So, down the line, the Missouri bill will probably go down for being too overreaching, just like its predecessor. At least free speech remains in the national discussion. I see that as positive because it would appear that privacy interests have gone the way of the dodo and nobody seems to care. It seems ironic that the same Marine whose death in Iraq was disrespected by the protests has now galvanized the stupidity-peddling churches to continue with their own offensive brand of civil discourse. Maybe this will shut down some of their media attention in the future because they've had their 15 minutes. But it will probably just push them to more lows in an attempt to get the sun shining on them again. This is yet another unintended consequence of this stupid, stupid war, as if Lance Cpl. Matthew Snyder's death wasn't enough. ---------- Craig Napier is an attorney in the Kirksville office of the Missouri State Public Defender System. He can be reached at ncnapier@gmail.com. Published: Fri, Mar 18, 2011