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Supreme Court Rules for Controversial Funeral Protesters in Free Speech Case

March 2, 2011 at 12:00 AM EDT
The nation's high court ruled 8-1 to uphold the free speech rights of a controversial group of religious protesters known for anti-gay rhetoric at military funerals. Judy Woodruff talks with Marcia Coyle of the National Law Journal about the implications of the highly anticipated and emotionally charged case.

JUDY WOODRUFF: And to a much anticipated free speech ruling from the U.S. Supreme Court. It upheld that the First Amendment does protect the rights of protesters to express their views outside military funerals, no matter how offensive the message. The justices today ruled 8-1 in favor of a controversial religious group known for its anti-gay rhetoric.

Attorney Margie Phelps is the daughter of the church’s founder. She had argued the case before the court, and she spoke about her victory from Topeka, Kan.

MARGIE PHELPS, defense attorney: We know what the law is. We follow the law. And we knew that the only way not to uphold our position was to shred, not only the First Amendment but 200 years of jurisprudence under the First Amendment.

JUDY WOODRUFF: Albert Snyder, the father of the slain Marine at the center of the case, later expressed his disappointment with the ruling.

ALBERT SNYDER: My first thought was eight justices don’t have the common sense God gave a goat. We found out today that we can no longer bury our dead in this country with dignity.

JUDY WOODRUFF: The high court also heard arguments today in a case involving former U.S. Attorney General John Ashcroft.

Well, Marcia Coyle of The National Law Journal was in the courtroom for the argument and for the decision, and she joins us now.

Welcome back, two nights in a row.

MARCIA COYLE, The National Law Journal: I know. Thanks, Judy.

JUDY WOODRUFF: So, I think it’s fair to say, Marcia, that a lot of people have a hard time understanding this decision handed down, the free speech case.

Take us back to what happened that precipitated the lawsuit.


As you recall, there was a protest, picketing outside of a church in which a fallen Marine was being — a funeral service was being held for a fallen Marine. The family of the Marine sued the Westboro Baptist Church, claiming that the demonstration inflicted emotional distress upon them. That’s a basis for a lawsuit, for damages. It’s a personal injury.

The Westboro Baptist Church raised as a defense the First Amendment. And the lower appellate court held that the First Amendment did protect this speech and overturned a jury verdict in favor of the family.

JUDY WOODRUFF: So, what was the main question, then, before the justices?

MARCIA COYLE: Whether the First Amendment protected this speech.

Chief Justice Roberts wrote the opinion today. And this morning, in the courtroom, he read a summary of that opinion. And it was very clear, I think, from his tone that he really wants people to understand how the court reached the decision, and that the court’s sympathy, if not the law, is with the Snyders.

He began by saying the issue before the court is whether the speech here, the messages on the pickets, was a matter of public concern or private concern. Matters of public concern, he explained, have special protection under the First Amendment, because the amendment reflects our national commitment to a robust and wide-open debate on ideas.

So, how do you decide, he said, what is a matter of public concern or private concern? He said you look at the speech and all the circumstances surrounding it. What was said? Where was it said? And how was it said? So he took each step.

What was said here? He said the dominant thrust of the messages here really were on issues of public concern: homosexuality in the military, the child abuse scandal in the Catholic Church, the moral decay of the United States.

JUDY WOODRUFF: So, deciding it was a public concern was crucial to how the court ruled?

MARCIA COYLE: Absolutely.

JUDY WOODRUFF: Now, there was a dissenting opinion. It was an 8-1 decision, and Samuel Alito, dissenting opinion. What did he say?

MARCIA COYLE: He didn’t see — he said this speech went far beyond matters of public concern. He called it a verbal assault on private persons.

There was speech directed specifically to Matthew Snyder, the young Marine who died here. And he felt that what the court was saying here was, in effect, allowing these protesters to continue a strategy by which they got publicity for their ideas, while at the same time ensuring that there would be additional emotional, serious emotional injury on innocent victims. He did not see that the First Amendment protected this demonstration.

JUDY WOODRUFF: Marcia, how unusual is it for the justices writing the opinion to, as you say, go out of their way to say that they feel sympathy for the other — for the losing side in the case?

MARCIA COYLE: Well, I said it seemed from his tone that he wanted people to understand that the court’s sympathies were with the Snyders, but he did say in his opinion that he understood, the court understood, that this added to what he called the incalculable grief that Mr. Snyder felt.

But he said it’s bedrock principle that the First Amendment does not suppress or punish the expression of ideas that may cause distress, that — or that we may find abhorrent.

JUDY WOODRUFF: Is there ever reaction in a courtroom when a decision is handed down, or was there one today?

MARCIA COYLE: Oh, there is often reaction to decisions.

And I would say when he began and announced that he had the decision in this case, the courtroom is silent, but it almost seemed as if it grew more silent. There was a real hush. And we couldn’t tell at first what the ruling was, because he laid out how he was going to analyze the issue before the court.

And it wasn’t until we got close to the end that we knew what the ruling was going to be.

JUDY WOODRUFF: Are there wider implications for this decision?

MARCIA COYLE: Well, I think, certainly, it sends a message that these types of demonstrations are protected. But, as the chief justice pointed out, 43 states, including the state involved in this case, Maryland, have enacted laws that impose restrictions, you know, where these demonstrations can be held, when they can be held.

So, I think the states have moved very quickly after the publicity about the one in Maryland to try to deal with this issue in a constitutional way, if possible.

JUDY WOODRUFF: Now, let me ask you about the — there was also, as we said, an argument before the court. This was a case that involves a former U.S. attorney general, John Ashcroft, who was attorney general under President Bush.


JUDY WOODRUFF: Tell us about that case.

MARCIA COYLE: It’s continuing fallout, I would say, from the Bush administration’s efforts to go after terrorism, terrorist activities following the 9/11 attacks.

The Justice Department is defending Mr. Ashcroft in a lawsuit in — today, they were before the Supreme Court arguing that Mr. Ashcroft has complete immunity from this lawsuit, in which an American citizen, Kansas-born Abdullah al-Kidd, charges that Mr. Ashcroft approved a national policy to use a certain law known as the material witness law in order to detain American citizens and others who…

JUDY WOODRUFF: So, it’s — but it’s the Obama administration arguing that the former attorney general should be immune from that?

MARCIA COYLE: That’s — that’s correct, because what’s at stake here is prosecutors — it could be the current attorney general, the next attorney general, or even lines of prosecutors, U.S. attorneys, who could face damages suits under this material support — material witness law — I’m sorry — material witness law.

I want to explain what that law is, Judy. I mean, basically, that law tells law enforcement that, if you want to arrest somebody as a material witness, you have to show to a judge or a magistrate that this person has material testimony, and the only way you’re going assure that person is available is by this material witness warrant. You’re arresting them, in effect.

And Mr. al-Kidd was held for 16 days in three different detention centers in three different states under extremely harsh conditions. Then he was under very big restrictions for 15 months, at the end of which, he lost his job and he was separated from his wife.

But he was never called to testify in a trial, and his testimony was never taken. So, the argument here is that the Justice Department used the law as a pretext to detain people in order to gather evidence.

JUDY WOODRUFF: And I read he had been a student. He had had — he had been conducting what would otherwise have been a normal existence before this happened.

MARCIA COYLE: That’s right. But he did have an acquaintance who was under investigation. And that’s why they were interested in him.

JUDY WOODRUFF: So, that one is argued, and we will wait a few months to see what the justices decide.

MARCIA COYLE: We will. It’s an important case.

JUDY WOODRUFF: Marcia Coyle, thank you.

MARCIA COYLE: My pleasure, Judy.