The Supreme Court has embarked on a new term that is widely predicted to be one of its most momentous in many years. But we should not quickly forget one very important First Amendment case decided by the court during its last term — one that may ultimately turn out to have been an important decision limiting the role of the jury as a check on the power of the government.
Snyder v. Phelps is a classic case of competing interests: the right of a father to bury his son in peace versus the constitutionally guaranteed right of a group to demonstrate on a public sidewalk. Although the court found that the evidence was more than sufficient to support the father's civil claim against the church, it held that it was unlikely that jurors could put aside their own views in such a case. The court, however, cited no evidence to support this finding.
The ruling raises a troubling question: Is it for the Supreme Court to decide which cases cannot be entrusted to a jury, or is it the Constitution itself which places this trust in the jury as a check on the power of the courts?
The story is well known by now: Lance Cpl. Matthew Snyder was killed in the line of duty in Iraq. Members of the Westboro Baptist Church traveled from Kansas to Carroll County to demonstrate at his funeral. The church preaches that homosexuality is immoral and that our soldiers are fighting in Asia to advance our country's tolerance of this sin.
Westboro has demonstrated at hundreds of military funerals. Having issued a press release resulting in extensive media coverage, the church displayed signs at Corporal Snyder's funeral proclaiming messages such as "Thank God for dead soldiers" and "God hates you." The church is well studied in the law and carefully complied with local setback rules, demonstrating on public land within 1,000 feet of the funeral. The church's pastor, Fred Phelps, is a former Kansas attorney. His daughter, attorney Margie Phelps, argued the case for the respondents.
The Sixth Amendment to our Constitution provides that the government may not take a citizen's property, freedom or life unless it can convince a jury of his peers that it is proceeding lawfully. The Seventh Amendment provides for a right to a jury in civil claims brought in federal court. In 1801, Thomas Jefferson wrote that the jury is the anchor by which the government is held to the principles of its Constitution. Two hundred years later, in Snyder, the "third branch" of that government may have limited the Constitution's check on its own power. In support of its ruling, the court cites its landmark decision in New York Times v. Sullivan, which held that a public official who sues a news organization for publishing an ad containing false statements about him must prove that the publisher acted with "actual malice."
The trial court did not, in fact, instruct the jury that Albert Snyder was required to prove that Westboro acted with actual malice toward him. The Fourth Circuit considered a remand for a new trial but concluded that there was no evidence Westboro acted with actual malice toward Mr. Snyder. I respectfully disagree, and in my opinion this is precisely why the constitution leaves such decisions to jurors rather than judges, legal scholars and editorial boards.
The Court of Appeals correctly noted that signs displaying the words "Thank God for dead soldiers," "Semper fi fag" and "God hates you" did not specifically mention Cpl. Matthew Snyder. However, given the fact that they were displayed within 1,000 feet of St. John's Catholic Church in Westminster on June 6, 2006, at the exact hour of Matthew Snyder's funeral, there was only one "dead soldier" and one Marine to whom they could possibly have referred. Westboro may be an "equal opportunity" civil offender, but that does not mean that its lawyer/theologians did not act with actual malice toward the Snyder family by using deliberately shocking and hurtful slogans in order to attract the attention of the media. This question should have been submitted to a jury as provided by the Seventh Amendment. Far more potentially prejudicial matters are submitted to juries throughout this country on an almost daily basis.
A free society must be able to protect the constitutionally guaranteed right of a group of citizens to speak, but without causing serious harm to another citizen seeking nothing more than to quietly bury his son who gave his life to protect that society. The court failed to achieve that balance.
Raymond Novak, a retired Pennsylvania state trial judge, is also a former Baltimore-trained priest. His email is firstname.lastname@example.org.