I’m not a lawyer, but this seems open and shut.
The facts: members of the Westboro Baptist Church (WBC) assembled on public property near a military funeral to protest military policy. When he learned about it afterward, the father of the deceased was properly outraged over the things the group said, and sued.
Without going too far into it, let me give the nub: WBC wins. They were not trespassing, or otherwise disruptive; the father didn’t even know they were there.
Matthew Staver, founder of Liberty Counsel and Dean of the Liberty University School of Law, said that his organization “expressly condemns the offensive tactics employed by the Phelpses” but did file a brief in support of the First Amendment.
“The Supreme Court must not use the bad facts of this case to restrict legitimate free speech rights of law-abiding citizens,” Staver said. “The First Amendment does not grant to anyone a veto right over another person’s speech, simply because it might be offensive. Free speech needs breathing room. I would rather tolerate a person’s offensive speech than be silenced by the force of law.”
If the WBC must not protest near the funeral, how far away must they be? Because if they are not disrupting the funeral itself, then their actual location doesn’t matter. They could offend just as well from anywhere.
And what must they say and not say?
There are no answers to any of these questions, and a court would have to answer all ofthem to rule agains WBC.