Constitutional Law

Kan. woman aims to outlaw mean posts on memorial websites

By By The Associated Press

OVERLAND PARK, Kan. ? Karla O'Malley was upset when she heard that an Arkansas teenager she had stopped to comfort after a Christmas Eve car accident in Overland Park had died. But she was outraged when she went to post condolences on a memorial website for the teenager and found that it included hurtful and offensive comments about the boy's death.

In response, O'Malley, of Overland Park, has collected 200 supporters for an online petition seeking a federal law that would ban the posting of such comments and photos on website memorial pages. She also is seeking help from U.S. Rep. Kevin Yoder, R-Kan. whose office is reviewing the matter.

While acknowledging that such a measure would limit free-speech rights, O'Malley said she believes those rights should not supersede common decency.

"I am not a legal expert by any means," O?Malley told The Kansas City Star. "I just have a strong burning inside to make this stop. Protesters can voice their opinions elsewhere, but there is a time and place for mourners to be left alone."

O'Malley, a human resources officer for a nonprofit social services agency, comforted 17-year-old Travis Storm McAfee of Fort Smith, Ark., after coming upon the accident that happened while he was visiting Overland Park. After he died, friends created a memorial page on Facebook.

O'Malley said someone posted on the website that he or she had laughed and wished McAfee had suffered even more.

Another person posted a photo of the accident scene with the comment, "Oops, I died."

The Star reported that even more offensive comments were posted, and similar postings were posted on a memorial page for a St. Joseph teen who died last fall.

"I think he just likes to create pain," O'Malley said of the kind of person who would post such comments.

With no legal training or help, O'Malley drafted what she is calling Travis' Law, which would make it a federal crime to post statements or photos on memorial websites "with the intent to hurt or create a hostile environment." The draft states "customary standards" would determine what is hurtful or hostile.

The proposal, which also would require protests at funerals to be far enough away that mourners would not be aware of them, would likely face constitutional challenges, a law professor said.

"It sounds as though the law would be aimed at suppressing particular viewpoints, and anytime a law attempts to do that, it faces a lot of First Amendment hurdles," said Doug Linder, a professor at the University of Missouri-Kansas City School of Law. "I think it would be very difficult to draft a law that would stand constitutional challenge there."

But another Missouri-Kansas City law professor, Nancy Levit, says the issues O'Malley is raising are at the center of Snyder v. Phelps, a case currently before the U.S. Supreme Court involving members of the Topeka-based Westboro Baptist Church, which pickets at military funerals. The father of a Marine whose funeral was picketed by the church has sued, saying the protests were an intentional infliction of emotional distress.

Westboro Baptist members might have a better claim to First Amendment protection than those who make comments on memorial websites because the church is claiming that their protests are statements on matters of public concern, Levit said.

"The major distinction is that posting in memorial pages does not even have that public concern component," she said.

The Supreme Court is expected to issue a ruling in the Westboro case this spring.

Full post as published by First Amendment Center on January 23, 2011 (boomark / email).