Reversal likely in protest verdict

The Baltimore Sun

Leading constitutional scholars say the multimillion-dollar damages awarded this week to the father of a Marine killed in Iraq is likely to be overturned because the church members who protested at his son's funeral enjoy broad protection under the First Amendment.

On Wednesday, a jury in federal District Court in Baltimore found in favor of Albert Snyder, the Marine's father. Jurors unanimously agreed that the Snyders' privacy had been breached by members of Westboro Baptist Church, who assembled on public property in Westminster on March 10, 2006, and waved anti-gay signs.

As mourners for Lance Cpl. Matthew A. Snyder drove by, members of the fundamentalist Christian church based in Topeka, Kan., held up signs, including one reading, "Thank God for dead soldiers." They contend that the deaths are punishment for America's tolerance of homosexuality and of gays in the military.

The $10.9 million verdict marked the first successful civil claim against Westboro, whose congregants have picketed at military funerals across the country.

But First Amendment experts expressed doubt whether the verdict against Westboro would survive review by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.

"I have spoken to a number of First Amendment attorneys today, and every one of them believes the case will be reversed and should be reversed," said Ronald K.L. Collins of the First Amendment Center in Washington.

Three adults and four children from Westboro picketed the Snyder funeral. Westboro lawyers contend that the demonstration, about 1,000 feet from St. John Roman Catholic Church, took place legally.

Albert Snyder, who lives in York, Pa., testified that news coverage of the protest -- he did not see the demonstrators' signs on the day of the funeral -- deeply disturbed him and deepened his depression over the loss of his only son.

Matthew Snyder, 20, a 2003 graduate of Westminster High School, was killed in a vehicle accident in Anbar province in March 2006.

Snyder's sexual preference was not an issue at the trial; his father said his son was not gay. Church members said they did not target Snyder's funeral because of his sexual preference; they were there to oppose gays in the military.

Rodney A. Smolla, dean of the Washington and Lee University School of Law in Lexington, Va., said Westboro members have a constitutional right to express their religious beliefs, but that case law is less definitive about the protections afforded to grieving families.

"We don't have clarity of whether a funeral is a public event or private event," he said. "But we do know that the law has traditionally respected that grief and death and dying are deeply personal and deeply private."

In the 1990s, Smolla successfully represented the families of three murder victims in a lawsuit against the publisher of a murder instruction manual.

The First Amendment, Smolla said yesterday, is not an absolute right protecting all forms of free speech.

"The limits on speech here should not be on the content of the message but rather the place and manner in which the message" is communicated, he said.

Westboro members have 10 business days to ask the federal judge who oversaw the case to review the verdict and damages. After that, according to attorneys, they have another 30 days to decide whether to appeal. Unless they can post a bond worth 120 percent of the value of the award, they must secure a judge's order to stave off payment to Albert Snyder, according to his attorney.

Jonathan Katz, an attorney for the church and its founder, said the presiding judge erred when he did not dismiss the lawsuit before trial. While his clients appeal, Katz said, he plans to ask U.S. District Judge Richard D. Bennett to suspend the $10.9 million judgment.

The $2.9 million awarded for compensatory damages is nearly triple the net worth of Westboro and the three members on trial, according to court documents. Yesterday, one of Snyder's attorneys said that while the verdict should stand, he would not be surprised if the judge reduces the award, which includes $8 million in punitive damages.

"The reality is that Westboro has First Amendment rights, but so does Mr. Snyder, and his rights shouldn't be trampled," said his attorney, Sean E. Summers. "He has the right to peacefully assemble for his son's funeral and the right to religious expression."

The lawyer dismissed the notion that the successful lawsuit could unleash a wave of similar legal actions against groups that engage in disrupting protests.

"The First Amendment has survived for more than 200 years, and a case against a bunch of funeral protesters won't change that," Summers said.

Several scholars drew parallels to the 1988 Supreme Court decision that Hustler magazine could not be held liable for parodying minister Jerry Falwell.

"'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it," then-Chief Justice William H. Rehnquist wrote for the court's majority. Rehnquist held that the First Amendment must protect the rights of those who voice controversial, even vitriolic opinions, arguing that a jury could "impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression."

A major difference in the two cases, legal authorities said, is that Falwell was considered a public figure. The judge in the Maryland case ruled that Snyder's son was a private individual.

Several legal scholars said the Westboro case could turn on whether Matthew Snyder's funeral is held to be a public event, at which political and religious views could be aired without fear of legal action.

For Snyder's claim of invasion of privacy to have succeeded, jurors had to conclude that the Westboro church's actions at the funeral -- and later, in an Internet posting about Matthew Snyder on its Web site -- were "highly offensive to a reasonable person," according to the jury instructions.

Albert Snyder also contended that the church's actions were an intentional infliction of emotional distress. Under the law, to find in favor of Snyder, the five women and four men of the jury needed to find that the church's conduct was "intentional or reckless." Jury instructions required that the conduct be "extreme and outrageous," leading to severe emotional distress.

Juries often find the kind of conduct expressed by Westboro distasteful, said Jane Kirtley, a law professor at the University of Minnesota who specializes in media law.

"Polls show that many Americans think the First Amendment goes too far. It is not that unusual for juries to return large verdicts," Kirtley said. "So we in society rely on appeals courts to look at the record and decide whether the conduct is protected."

She said the Westboro protest, however hateful, did not "rise to the level of outrageousness. Offensive, yes. But outrageous? I would question whether standing up and yelling is outrageous under the law."

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