Supreme Court hears case of Marine funeral protests

While members of Westboro Baptist Church waved a sign outside the U.S. Supreme Court on Wednesday thanking God for dead soldiers, the nine justices inside tried to define the line at which such public protests become personal attacks during arguments in an emotionally charged case prompted by the picketing of a Maryland Marine's funeral.

Lance Cpl. Matthew Snyder was 20 years old when he was killed in a Humvee accident in Iraq on March 3, 2006. A week later, publicity-seeking members of the fire-and-brimstone Kansas congregation — all strangers to the Snyders — appeared at his family's Catholic funeral service in Westminster with posters proclaiming sentiments like "God Hates America" and "Semper Fi Fags." They later posted online a diatribe blaming Snyder's death on the sins of the country and his divorced parents.

Snyder's father sued for intentional infliction of emotional distress and initially won, though the multimillion-dollar verdict was overturned on appeal. That series of legal decisions vaulted the Maryland case to the country's highest court, where it's testing the boundaries of the First Amendment and putting liberal free-speech advocates in the position of siding with fringe Christians.

"The First Amendment is something that's so critical that it may, in this case, just trump the behavior that most people feel is pretty outrageous," said Carl Tobias, a professor at the University of Richmond School of Law.

The case put several specific questions before the court — addressing the rights of private versus public figures, whether free speech is more important than freedom of religion and peaceful assembly, and whether a funeral constitutes a captive audience that needs protection from certain communication. But at its heart are issues of intellectual freedom and human decency.

Snyder's lawyer, Sean E. Summers, said that the funeral protest was a targeted attack that stripped a family of its right to bury their son with dignity, causing the young man's father physical and mental harm by worsening his diabetes and depression.

"The private, targeted nature of the speech … is what makes it unprotected," Summers said.

But Westboro's side, presented by the lawyer-daughter of the Topeka church's founder, countered with claims that they were simply a "little church" preaching on issues of public interest at a public forum that was likely to draw attention.

The justices — all but the ever-silent Justice Clarence Thomas — asked dozens of questions and offered various hypothetical circumstances in an effort to tease out the border between communication and confrontation.

Justice Antonin Scalia questioned whether the online diatribe should be considered separately from the funeral protest, while Justice Samuel Alito suggested that it provided the context to understand the picketing.

Justice Stephen Breyer called the Westboro statements "very obnoxious," and raised concerns about their being broadcast over television and on the Internet. "What should the rules be there?" he said.

Justice Sonia Sotomayor asked about the basis for Snyder's belief that public speech directed at a private person should be treated differently than such speech directed at a public figure, and Justice Elena Kagan questioned whether states could remedy the situation by banning funeral protests.

Justice Anthony Kennedy asked Summers whether he knew of any similar cases where damages were awarded, but Summers did not. And Chief Justice John Roberts tried to push Phelps beyond the "facts of the case" to discuss the "broader" issues.

"This is a case about exploiting a private family's grief," Justice Ruth Bader Ginsberg said "And the question is: Why should the First Amendment tolerate exploiting this bereaved family?"

The answer could define the scope of the First Amendment. Some fear that if Westboro wins, it would open up individuals to all kinds of hate speech, so long as the speaking is done under the guise of public-interest protest. Others worry that a win for Snyder will crush public discourse.

"Free speech needs breathing room," Matthew Staver, founder of the Liberty Counsel religious freedom organization, said in a statement. "I would rather tolerate a person's offensive speech than be silenced by the force of law."

Free-speech advocates — including the American Civil Liberties Union, the Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression — filed briefs in support of the tiny but loud Baptist church, which is made up of family members of founder Fred W. Phelps Sr., a retired lawyer who was disbarred decades ago for harassing a court reporter.

Most of his 13 children — including his daughter, Margie J. Phelps, who argued the case Wednesday — followed him into law and adopted his moral code, which condemns Judaism, homosexuality, adultery, fornication and greed, among other things. They believe God is killing people through war and disease to punish the country for its sins, and have been preaching that message in various places for decades.

Some have equated their efforts with the sort of protests that went on during the Vietnam war era, while others say they're in a category all their own because of their focus on individual funerals, which they began picketing several years ago. In a filing with the U.S. Supreme Court, Phelps described such memorial services as "an available public platform, when the living contemplate death, to deliver the message that there is a consequence for sin" — namely hell.

"If you want that to stop, stop sinning," a church member said outside the courthouse Wednesday, shortly before breaking into song with the others, singing "You're going straight to hell on your crazy train" to an Ozzy Osbourne tune.

About 26 Westboro members came to Washington on Wednesday. Membership, at about 70 people in 2007, has fallen over the past few years, Margie Phelps said.

Meanwhile, 48 of the country's attorneys general, including Douglas F. Gansler from Maryland, filed a combined brief in support of Albert Snyder, as did the U.S. Veterans of Foreign Wars and about half the U.S. Senate.

Snyder has also drawn the financial support and emotional sympathy of thousands, including Kansas Attorney General Steve Six, who appeared in Washington on Wednesday and apologized for having the Westboro clan located in his state.

"We feel horrible in Kansas," Six said.

For Snyder, Wednesday's arguments marked the beginning of the end. He has taken the case as far as he possibly could "for Matt," he previously told The Baltimore Sun.

"Boy, am I glad this is over," Snyder said Wednesday before scores of reporters.

He wore a button, with the words "my hero" above Matthew's photo, pinned to his sport coat. He thanked his family and many supporters, including his two attorneys, Summers and Craig Trebilcock, who worked pro bono. They both are veterans and members of the Army Reserve's Judge Advocate General's Corps.

"Words cannot express the depth of our loss," Snyder said, adding that he thought the day his son died was the worst of his life. But then it was "compounded by the family being targeted," he said. "It is something no family should have to live through."

He described the Phelpses' conduct as so extreme that "it was beyond all possible bounds of basic human decency. … [A]ll we wanted to do was bury our son with dignity and respect."

Five days after Matthew Snyder was killed, the Phelpses sent out a news release warning his father and the authorities that they planned to picket the Westminster service at the "St. John's Catholic dog kennel." The funeral procession was rerouted, a SWAT team brought in, and a team of motorcyclists shielded the funeral-goers from viewing Westboro members.

But Snyder knew they were there, and later saw them on television and read their online diatribe, which the group called an "epic," against his son.

He filed a civil suit in federal court in Baltimore, and in October 2007, a jury awarded him $3 million in compensation and $8 million in punitive damages after finding that the Westboro Baptist Church had intentionally inflicted emotional distress and invaded Snyder's privacy. The punitive award was later reduced to $2.1 million.

But the U.S. 4th Circuit Court of Appeals overturned the decision last fall, finding that the Phelpses' conduct was protected by the First Amendment, because it employed rhetorical hyperbole on matters of public concern — "including the issue of homosexuals in the military, the sex- abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens" — and did not contain provably false statements.

The U.S. Supreme Court agreed to hear the case this year, and it is expected to rule before the end of its session next summer.

tricia.bishop@baltsun.com

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