Earlier this session, we testified on a bill, LD 91, which sought to increase criminal penalties for protesters at or in the vicinity of a funeral. While both the message and the target choice of these protesters are deplorable, fortunately for all of us, free speech doesn't belong only to those we agree with.
The Criminal Justice Committee considering LD 91 agreed that even offensive messengers are guaranteed a constitutional right to speak. They rejected the bill, retaining current law which strikes the appropriate balance of protecting free speech, while at the same time ensuring friends and families have an opportunity to grieve without being harassed by vile and disrespectful displays.
Yesterday, the Supreme Court issued its decision in the related case of Snyder v. Phelps,addressing and affirming the First Amendment rights of anti-gay protesters at military funderals.
Eight of the nine Justices agreed with Maine's Criminal Justice Committee, that the First Amendment doesn't only protect speech that is tasteful and inoffensive. It is actually in the hard cases that our commitment to the First Amendment is most tested and most important. The Court held that the penalty issued in response to a claim of intentional infliction of emotional distress improperly violated the First Amendment rights of the peaceful (though extremely offensive) protesters.
We believe the Court’s decision properly and respectfully acknowledges the Snyder family’s grief. But it correctly holds that the response to that grief cannot include the abandonment of core First Amendment principles designed to protect even the most unpopular speech on matters of public concern.
A copy of the ACLU's brief in the case is available online here.