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Supreme Court Justices ‘Felt the Emotion’ of Military Funeral Protest Case

October 6, 2010 at 12:00 AM EDT
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Supreme Court justices are considering a battle of First Amendment rights vs. individual privacy after members of a controversial church protested at the funeral of a U.S. Marine. Marcia Coyle of the National Law Journal describes Wednesday's hearing and considers the issues being weighed by the court.
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JEFFREY BROWN: Marcia Coyle of “The National Law Journal” was, of course, in the courtroom for today’s arguments. And she joins me now.

Marcia, incredibly charged, extraordinarily charged case. What was the atmosphere at the court today?

MARCIA COYLE, “The National Law Journal”: Well, the courtroom was packed, Jeff, with public spectators, members of the bar, and also the press. There wasn’t a spare seat that I could see.

There was also a sense of anticipation, because, obviously, this case has attracted a lot of attention, and all of us were anxious to see what the justices would say, what they were interested in. And it was clear that they did feel the emotion.

At one point, Justice Ginsburg said, this is a case about exploiting a grieving family.

JEFFREY BROWN: Now, Mr. Snyder’s side went first. And we just saw him in Kwame’s piece there say, this is a funeral we’re talking about.

Is that the argument that his lawyer made?

MARCIA COYLE: Well, he opened it — his argument with that statement, very stark. We’re talking about a funeral. If context is ever going to matter, it has to matter in the context of a funeral. And that sent the justices off on a series of questions.

Justice Ginsburg: Does Mr. Snyder really have a claim here? She noted that these protesters were not in close proximity to the church, they didn’t block the entrance for attendees, and that the protest ended a few minutes after the service began.

And he said, what — what this is here is some of the speech on the signs, as well as a video that was on the church’s Web site, was private, targeted speech, and that is not protected by the First Amendment.

JEFFREY BROWN: This question of being a private person vs. a public figure is very important in First Amendment cases.

MARCIA COYLE: It’s very — is very key to him, because there was an earlier Supreme Court decision involving the late Reverend Jerry Falwell, who sued “Hustler” magazine for the same type of injury, intentional infliction of emotional distress. And he lost in the Supreme Court, in part because he was a public figure.

JEFFREY BROWN: Now, Margie Phelps, we saw her in the piece. She’s the daughter of Reverend Phelps. She argued the case herself today, as Kwame said. What were her key points?

MARCIA COYLE: Well, she wants the court to believe that Mr. Snyder here is a public figure. And she told the court that he became a public figure shortly after his son’s death, when he made comments to the media about the war and about the loss of human lives.

 

She then faced a series of questions from the justices about, when do you become a public figure, if you’ve been a private figure? Where is that line?

Justice Alito asked, for example, what if a parent gives information to a newspaper for an obituary and the newspaper asks for comment, and the parent says, “I’m proud of my son because he died in the service of his country”? Has that parent entered the public debate?

And Ms. Phelps responded: Whatever you call it, our church has the right to respond.

JEFFREY BROWN: So, you saw — you saw the justices groping for this — this line, because, I mean, First Amendment law is made out of these kinds of cases, right, where the speech may be as hateful as anyone can imagine…

MARCIA COYLE: Absolutely.

JEFFREY BROWN: … and yet there is this argument for protecting it.

MARCIA COYLE: Absolutely, Jeff. You can go back to — you know, quite a ways back, when the Supreme Court protected the burning of the American flag. It was hugely controversial at the time. And come forward to last term, when the court struck down a federal law that banned the sale of animal crush videos on First Amendment grounds.

So, yes, it — and facts matter. They’re carefully examining what happened here at this funeral.

JEFFREY BROWN: And it makes for some key — some strange bedfellows. As Kwame said, you have all these media organizations lining up with the Phelps, not to say they like what they did, but to defend the principle of the First Amendment. And then you have others on the other side.

MARCIA COYLE: And you have that, Jeff, because you have here, somewhat unusual in terms of cases that get to the court, the intersection or the clash between the First Amendment, which is very powerful in its protection of speech, even speech that many of us would abhor, and you have state law, which offers an avenue for people to hold others accountable when they injure us, either physically or emotionally, as Mr. Snyder claims to have been harmed.

JEFFREY BROWN: Well, you just referred to this idea of the cases that reach the court. It’s always an interesting question.

I mean, we don’t know why they take up a particular case, but what — put this in some context of recent court history or — or rulings on — on — specifically on First Amendment cases.

MARCIA COYLE: This court, for many years — and predating the Roberts court — has always been a strong — generally a strong First Amendment court. And it’s reluctant to carve out exceptions. And, in a sense, Mr. Snyder is asking for an exception for funerals here to the First Amendment.

It has carved them out for — when it’s concerned about children in the area of pornography. But, for the most part, it’s very protective of speech, especially speech on matters of public concern, public issues.

And that’s what the lower court found here, that the Phelpses were talking about matters of public concern, and also some of their more outrageous statements, nobody — no reasonable person would believe was actually true of Mr. Snyder and his dead son.

JEFFREY BROWN: Well, I wouldn’t make you want to predict the outcome here, but that’s — but that all suggests that Mr. Snyder has a — has a tough case to make.

MARCIA COYLE: I think he does. But it looks as though the justices also have a tough decision.

JEFFREY BROWN: All right, Marcia Coyle of “The National Law Journal,” thanks, as always.

MARCIA COYLE: My pleasure, Jeff.