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SALT LAKE CITY -- First Amendment issues before the U.S. Supreme Court, as it began a new term Monday, are of interest in Utah as the court examines where reasonable restrictions apply.
Will a Utah law prohibiting protests at military funerals be strengthened or nullified based on the Snyder v. Phelps case before the Supreme Court? How would "time, place and manner" restrictions on protesters affect scenarios common to Utah, like those at LDS Church general conference sessions?
Rulings this session will "tell us a little bit about whether the court will take an absolutist approach to the First Amendment or whether it's going to allow reasonable time, place and manner restrictions on First-Amendment rights," said Paul Cassell, a University of Utah law professor and former federal prosecutor and federal judge.
"The court has always tried to balance First-Amendment rights against other kinds of interests," Cassell said. "Generally there's a thumb on the scale in favor of First-Amendment freedoms, but at some point First-Amendment freedoms have to allow reasonable regulations. The classic example is you can't yell 'fire' in a crowded theater. You can't play a loud loudspeaker in a residential area at midnight. So there are some limits that are allowed."
The Snyder v. Phelps case before the Supreme Court tackles the military funeral question directly, challenging a Maryland case where a jury awarded the father of a Marine killed in Afghanistan almost $11 million after Westboro Baptist Church members protested his son's funeral two years ago.
The question in Snyder v. Phelps is whether a flat-out ban on protests at military funerals is a reasonable time, place and manner kind of restriction, Cassell said, adding that the high court's ruling has great potential to affect other cases.
"If the court takes an extreme view and says First-Amendment rights trump any other kind of reasonable regulation then I think you'll start to see some question about (whether) you can limit Olympics protests or can you limit (LDS) conference protests in any way.
"The court has been fairly good over the last several decades in making it clear some reasonable restrictions can be placed on First-Amendment freedoms, and I'm expecting that they're going to find this is a reasonable restriction and allow the state law that forbids these kinds of protests to be upheld," he said.
A 2007 Utah law makes demonstrating in a noisy and disruptive manner within 200 feet of a funeral or memorial service a class-B misdemeanor. The law prohibits protesters from blocking or impeding a funeral procession, but it does not ban protesters from quietly demonstrating in view of those attending the funeral or along a procession route.
"Utah has filed a brief in the Supreme Court in support of the law restricting protests in military funerals," Cassell said. "Forth-eight states have similar laws or have taken similar positions and have urged the court to uphold the restrictions here."
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Story written by Steve Fidel and Mary Richards.
