I have written a lot on the Snyder v. Phelps case since my first post on it, here.
Now that Phelps is appealing to the U.S. Supreme Court, there seems to be more to say about the case, and John W. Whitehead says it brilliantly:
America once symbolized the very essence of free speech, where society’s most arduous and insidious ideas could be put to the test in what Justice Oliver Wendell Holmes termed the “free marketplace of ideas.” Today, however, we have been captured by the chains of political correctness and an emerging war empire. And if we do not throw off these chains, we will bury freedom along with our fallen soldiers.
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The Legal Satyricon 
Phelps & Co. represent a unique blend of ideals. On the one hand, the embody the very essence of free speech under the First Amendment; on the other hand, few people disagree that the world would be a better place if somebody snapped during one of their protests and gunned down the whole lot of them. I don’t think the court has any business censoring their speech based on its content, but if the grief-stricken parent of a dead soldier ever decides that Fred Phelps shouldn’t be physically capable of telling anyone it’s a good thing their child is dead, I’m not gonna complain. Call me a censor, call me naive, whatever; Phelps will get what’s coming to him one of these days, and probably rightly so.
I don’t think you’re a “censor.” The First Amendment means the government can’t interfere in your free speech — but the First Amendment never exempted anyone from a private ass-kicking.
I fall on the side of “time place and manner” restrictions. The rights of Phelps to express themselves have to be weighed against the rights of funeral mourners to a peaceful funeral. I don’t think that their should be any special protection for military personnel but I do believe that Phelps can express themselves subject to distance requirements without harming 1st Amendment.
But wasn’t Phelps’ protest 1,000 feet away from the funeral?
Yes, and the TPM jurisprudence around abortion protest put them there, for the same line-drawing reasons.
The idea that a TPM restriction is permissible doesn’t work well with drawing bright lines. I don’t see why a mile (or an undefined distance that puts the out of visual range) isn’t as constitutional as 100 feet, except that judges get all excited to squeeze litigants on finding the exact least restrictive limit.
If it’s constitutional to keep the protest away from the clinic/funeral, let’s put it over a hill or around a corner where the intended targets will miss it.
Harry, as I recall the facts of the case, the mourners didn’t see the protest and were largely unaware of it until after the funeral.
You’re correct, but that goes to the (somewhat silly) IIED claim in the case. The comment I’m responding to is about the validity of TPM restriction (two tangents away from the case).
TPM constitutionality shouldn’t rest on how effective a restriction works in one instance. Of course, that is not the subject of the litigation.