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Snyder v. Phelps: Contemptible Speech or Freedom of Expression?

written by Andrew Lubin
on October 13, 2010

UPDATE: (March 2, 2011) Supreme Court Rules 8-1 in Favor of Westboro Funeral Protesters

October 13, 2010: Last Wednesday, October 6, I attended the oral arguments at the U.S. Supreme Court for the emotionally charged Snyder v. Phelps case.

The facts of the case are simple. Albert Syder, the father of a young Marine (Lance Cpl. Matt Snyder, 20) killed in Iraq, sued Fred Phelps and his Westboro Baptist Church for demonstrating at Matt's funeral. There is no personal tie between Snyder and Phelps; the Westboro people arrived uninvited at the funeral and held up signs saying "God hates you," "Semper Fi fags" and "You're going to Hell," and two weeks later posted a particularly vicious diatribe on their website targeting young Matt, his father and his stepmother.

LCPL Matt & Albert Snyder.jpg

Lance Cpl. Matt Snyder and his father Albert Snyder

Westboro is a tiny (40-50 member) fringe church based in Topeka, KS, whose members are predominately members of the Phelps family. They believe that America is pro-homosexual, and since Marines and soldiers fight to protect the United States, they are pro-homosexual and God wants them dead due to America's wanton lifestyle.

In 2007, Snyder sued Phelps and his church in U.S. District Court in Maryland and won $10.9 million for intentional infliction of emotional distress, intrusion and civil conspiracy. The church filed for bankruptcy and appealed, and in a 2-1 decision in 2009, the U.S. Fourth Circuit Court of Appeals (Richmond, VA) overturned the verdict on the basis of the First Amendment, stating that the signs Westboro carried, while repugnant, were constitutionally protected because they contained "imaginative and hyperbolic rhetoric intended to spark debate about issues with which the defendants are concerned."

The Appeals Court decided Albert Snyder's wish to bury his son was immaterial to Westboro's interest in interfering in his private grief, as the Maryland civil court recognized.

With hundreds of demonstrators from both sides protesting outside the Supreme Court, Chief Justice Roberts opened the hearing, and Justice Scalia opened the questioning. "Does the after-funeral video Westboro posted on their website also intrude on the funeral," he asked? "Yes," argued Sean Summers, the Snyder family attorney, "it personally targeted the family."


The youth of the Westboro Baptist Church.

Justice Ginsburg also asked direct questions, including, "Who is the 'you' on those signs — Mr. Snyder or society in general?" Attorney Summer replied that some of the signs were general, but others were directed at the Snyders, and if the signs were general, then Snyder would not have objected.

Justices Scalia, Kagan, Sotomayor, Breyer and Alito all continued the same line of questioning, wondering if these signs were a form of political protest and, therefore, likely protected under the First Amendmaent.

Exactly 30 minutes later, Margie Phelps, attorney and daughter of defendant Fred Phelps, spoke for Phelps and the Westboro Baptist Church. The justices again (save Clarence Thomas) fired questions at the attorney. With Justices Kagan, Alito, Sotomayor, Ginsburg and Roberts asking questions almost simultaneously, their emphasis was on harassment and if private individuals should be treated differently than public figures. Attorney Phelps argued that private individuals should not be treated differently than public figures, that picketing someone's home was acceptable, as would be following and demonstrating against a wounded soldier who had been returned home. Justice Ginsburg interrupted, asking if a demonstration and exploiting a private family's grief would be acceptable even if alternative venues were available? "Absolutely," Phelps replied.

Interrupting Ginsburg, Justice Alito posed a hypothetical question, asking if it would be acceptable to verbally accost a grandmother, a private figure, on a bus returning from visiting her Marine grandson's grave?

"It would depend," Phelps hedged, "maybe she's a public figure?"

"No," said Alito, "she's a not in the public eye, and she's a Quaker."

"It depends," Phelps begain again before Ginsburg interjected, "isn't this stalking?"

"No," said Phelps, "it only sounds like stalking."

Continuing the thought, Chief Justice Roberts asked how Lance Cpl. Snyder was selected, if not for maximum publicity. Maximum publicity makes no difference, nor does inflicting emotional distress, Phelps argued. "Nation, hear this little church," Phelps continued, "and stop sinning." From Phelp's answers, the time in court was as much about broadcasting her church's message as it was about the Constitutional right to free speech.

Perhaps the Justices revealed their feelings by repeatedly referring to Westboro's activities as "contemptible" and "lamentable," and they did not comment on the amicus brief filed by the Reporters Committee for Freedom of the Press and 21 news organizations in support of Westboro's First Amendment claim. The brief pointed out that similar repugnant claims were made by conservative pastor Jerry Fallwell, when he said 9/11 was "God's punishment for the secularization of America by pagans, abortionists, feminists, gays and lesbians." While this is clearly repugnant speech to anyone who lost a loved one on 9/11, Falwell differs from Westboro in that he did not attack anyone specifically, as opposed to Westboro specifically targeting the Snyder family.

Also, I was surprised that the judgment of the Maryland court was not mentioned. It stated that Westboro intruded, and by its civil conspiracy, intentionally inflicted emotional distress on the Snyder family. Instead, the Justices seemed to be caught up with another question: While the First Amendment is needed to protect unpopular free speech, is there a line over which unpopular free speech cannot cross?

In the end, I hope the Justices will take a step back and remember that all Albert Snyder wanted to do was bury his son and grieve privately and how Westboro Church's gratuitous conduct made that impossible.

The Supreme Court's decsion isn't expected until next year.

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