WASHINGTON (ABP) — The justices of the Supreme Court struggled Oct. 6 over where to draw the line between freedom of highly unpopular speech and the freedom of a dead soldier’s family to mourn in private.
The high court heard oral arguments in Snyder v. Phelps, a case involving one of the many protests staged by Westboro Baptist Church of Topeka, Kan., in recent years at funerals for members of the United States military killed in Iraq or Afghanistan. The church — which preaches that war deaths reflect God’s judgment on the United States for the nation’s embrace of homosexuality — has long been infamous for its virulently anti-gay protests in various venues.
In 2006, the Westboro group picketed outside the Westminster, Md., funeral of Lance Cpl. Matthew Snyder, a Marine who died in Iraq. The protesters held up signs with messages like “God Hates Fags,” “Fag Troops,” “God Hates You” and “Thank God for Dead Soldiers.”
The church also later posted a document on its website, titled “The Burden of Marine Lance Cpl. Matthew A. Snyder,” that accused the dead Marine’s parents of teaching him “that God was a liar.”
Snyder’s father, Albert, saw news coverage of the messages on the protest signs and read the document on the Westboro site. He sued the church for intrusion upon seclusion, emotional distress and other wrongdoing. In 2007, a federal jury in Baltimore awarded him nearly $11 million in damages.
Last fall the 4th U.S. Circuit Court of Appeals voided that judgment. The appellate court said that, while the messages the Westboro protesters conveyed were “distasteful and repugnant,” they are nonetheless protected by the First Amendment because they are not verifiably defamatory and deal with public issues.
Albert Snyder appealed the decision to the Supreme Court.
'We are talking about a funeral'
Sean Summers
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“We are talking about a funeral,” said Sean Summers, Snyder’s attorney, to begin his argument. “If context is ever going to matter, it has to matter in the context of a funeral. Mr. Snyder simply wanted to bury his son in a private, dignified manner. When the respondent's behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the State of Maryland.”
During the arguments, the justices seemed preoccupied with whether any sort of lines could be drawn that would allow for robust protection of free speech but also allow the Snyder family to mourn in private.
“So now we have two questions,” Justice Stephen Breyer said. “One is: Under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious…? And the second is: To what extent can they put that on the Internet, where the victim is likely to see it, either on television or by looking it up on the Internet?”
He continued: “I don’t know what the rules ought to be there. That is, do you think a person can put anything on the Internet? Do you think they can put anything on television even if it attacks, say, the most private things of a private individual?”
Contributing to the justices’ difficulty is that the court’s precedents on jury verdicts in lawsuits involving speech distinguish between speech about at a public personality and speech directed at a private individual. Satirical, hyperbolic or outrageous speech about public figures enjoys broader First Amendment protection than speech — particularly if it is defamatory — about private individuals.
Federal case law has little to say, however, about speech that deals with public issues but is directed at private individuals.
“The private, targeted nature of the speech, in our judgment, is what makes it unprotected,” Summers said. “I would hope that the First Amendment wasn't enacted to allow people to disrupt and harass people at someone else's private funeral.”
Public issues, private victims?
Margie Phelps
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But Margie Phelps — the church’s lead attorney and one of Pastor Fred Phelps’ daughters — countered that limiting even the most outrageous forms of public speech because they are distasteful could have serious consequences.
“The words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues … about dying soldiers, about the morals of the nation,” she told the court.
Justice Ruth Bader Ginsburg noted that the Westboro group had protested at more traditional free-speech venues — such as the Maryland State House in Annapolis – earlier on the day of Snyder’s funeral.
“This is a case about exploiting a private family's grief, and the question is: Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for getting across your message, the very same day you did?” she asked.
Phelps replied: “When I hear the language, ‘exploiting the bereavement,’ I look for: What is the principle of law that comes from this court? And the principle of law, as I understand it, is: Without regard to viewpoint, there are some limits on what public places you can go to, to deliver words as part of a public debate.”
Chief Justice John Roberts asked Phelps if it matters that the target of the outrageous speech was chosen because the venue — in this case, a military funeral — as “a way to get maximum publicity for your client's particular message.”
Phelps said that seeking maximum publicity is a natural aspect of free speech. “The motive of the speaker to get maximum exposure — which every public speaker pines for, looks for, strives for and is entitled to — does not change the legal principle that's at play,” she said.
And that legal principle should be robust protection for free speech on public issues, she contended.
“I believe that the umbrella of protection under the First Amendment that this court has established firmly is speech on public issues. Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues,” Phelps said.
The case is No. 09-751. A verdict is expected before the court reaches the end of its 2010-2011 session next summer.
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.
Read more
Official argument transcript in Snyder v. Phelps
Previous ABP stories:
Supreme Court to hear Westboro Baptist Church case Oct. 6 (8/4/2010)
Church claims funeral protests are protected (7/8/2010)
Court voids $5 million judgment against Westboro Baptist Church (9/25/2009)