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Inside The Supreme Court: Marcia Coyle on Military Funeral Protests

SCOTUS Funeral protests Phelps  wide (3).jpg

Attorney Margie Phelps argues for the respondents in Snyder v. Phelps. Courtroom sketch courtesy William Hennessy

Marcia Coyle of the National Law Journal was inside the U.S. Supreme Court Wednesday to hear arguments in a much anticipated case on the scope and strength of the First Amendment: Snyder v. Phelps, which centers on a Kansas-based fundamentalist church’s practice of protesting at the funerals of service members who have died in Iraq and Afghanistan.

What was the mood like in the courtroom this morning?

Marcia Coyle: The courtroom was full this morning. It was the first case of the day, and there was a general sense of anticipation in the courtroom because this is a case that has attracted a lot of public attention and arouses strong feelings. We all were interested in hearing what the justices would say and whether they’d be affected at all by the emotions that surround this case.

Without delving too much into the back-story of the case itself, how did Snyder v. Phelps make its way up to the Supreme Court?

Marcia Coyle: Let me give you a framework for the case and why it could be difficult for the justices. The case involved the intersection of two areas of the law with which we are all familiar. The First Amendment, with its powerful protection of speech, even speech that we abhor, and state law, which provides an opportunity to hold accountable people who injure us not just physically but emotionally, as the father of the dead Marine claims here.

A lower court held that the First Amendment protected the Phelps’ protest because their messages were speech on matters of public concern such as gays serving in the military and the Catholic church sex abuse scandal, and also because no reasonable person looking at their signs, which contained hyperbolic rhetoric, would interpret them to be true facts about Mr. Snyder and his dead son. So the lower court said the First Amendment prohibited Mr. Snyder from collecting damages the jury had awarded him after finding the Reverend Phelps had intentionally inflicted emotional distress on him and his family. Mr. Snyder brought the case argued today to the Supreme Court asking the justices to reverse that lower court ruling.

In making this decision, the lower court had relied on a famous Supreme Court decision stemming from a lawsuit filed by Jerry Falwell against Hustler magazine, in which Mr. Falwell claimed that a sex parody in the magazine injured him by intentionally inflicting emotional distress. Falwell lost his Supreme Court case because the justices said he was a public figure and had to prove actual malice, but they also said that political satire, parody, and outrageous statements in the area of political and social debate can’t be the basis for liability. So facts matter in First Amendment cases, who said what, where and when. And that was very obvious with the very first statement this morning by Mr. Snyder’s lawyer, Sean Summers. He said, “We are talking about a funeral. If context is ever going to matter, it has to matter in the context of a funeral.” His lawyer maintained that Mr. Snyder’s argument is that he is a private person, not a pubic person like Jerry Falwell was, and this was a private funeral.

Describe the back-and-forth in the courtroom. What kinds of questions did the justices pose to the petitioners?

Marcia Coyle: Justice Ginsburg noted that after this particular protest, Maryland, where this all took place, enacted a law restricting the time, place and manner of protests at funerals. But even before that law was on the books, the Phelps were in compliance. This protest was at a considerable distance from the church. No one was blocked from entering or leaving the church, and the protest ended shortly after the service began. Justice Ginsburg asked Mr. Summers why Mr. Snyder had claim here. Mr. Summers said that specific signs carried by the protesters said “God hates you,” and, “You are going to hell,” and that these were directed at Mr. Snyder and his dead son, and there also was a video on the church’s web site that specifically named Matthew Snyder and made such outrageous statements such as that his parents raised him to be a liar. “It was the private targeted nature of that speech,” he said, “that the First Amendment does not protect.”

Chief Justice Roberts asked, “What if the sign simply said, ‘Get out of Iraq?'” Mr. Summers answered that there would be no problem with that. Justice Sotomayor pressed him on whether it makes a difference if the person to whom the speech is directed is a public or private person. Mr. Summers said yes, and that you have to look at the context, that this was a private funeral, which was disrupted, and there were personal attacks on a private person.

“But suppose,” said Justice Kagan, “It was a standard anti-war demonstration, and the funeral was not disrupted, the protesters were just taking advantage of a private funeral?” Mr. Summers said that would be a closer call, because there was not the personal targeted nature of the attack that the Snyders experienced.
But Justice Kagan quickly said, “So does that mean that now we have to start reading each sign and saying that the sign with ‘War is wrong,’ falls on one side of the line, but the sign that says, ‘You are a war criminal,’ falls on the other side of the line? Is that what we would have to do?” Mr. Summers said, “I think that generally speaking, yes.”

What did the justices focus on when they questioned the respondents?

Marcia Coyle: The minister’s daughter, Margie Phelps, argued the case for her father. She began by stressing that this protest was done with great circumspection and awareness of the boundaries set by the court. She argued that Mr. Snyder was a public figure because he had stepped into the public debate about the war after his son died, making public comments criticizing the war and being distressed about the loss of his son’s life. She said that he became a public figure, and so his claim of intentional infliction of emotional distress is barred by the First Amendment. Justice Sotomayor told Phelps that she fully accepted that the Phelps are entitled to speak about any political issue they want to in some circumstances. “But what’s the line,” she asked, “about doing that and then personalizing it and then creating hardships to an individual?” Ms. Phelps again said, “The line is when this father used the occasion of his son’s death to speak about the war.”

The justices then confronted her with a series of hypothetical situations testing when a private person becomes a public figure. Justice Alito asked, “What if a parent calls into a newspaper obituary information office, and the local newspaper asks for a comment, and the parent says, ‘I’m proud of my son because he died in the service of our country.’ Is he stepping into a public debate by doing that?” Ms. Phelps said, “However you call it, a church or anybody has the right to answer that public comment. That is our position.”

Chief Justice Roberts said, “What if the parent simply buries his son? Is he a public figure open to this protest or not?” Ms. Phelps said, “I don’t know, in the context of a war, if I can give a definitive answer to that.”

Any hints from what you saw today as to which way the justices might be leaning?

Marcia Coyle: The case could be weakened by the fact the father didn’t actually see the protest when it occurred, he saw it later on television. But I think this one is really difficult to call on the basis of the arguments. I think some of the justices’ characterizations of the case when asking questions about the “bereaved family” showed that they were very much aware of how hard this must have been for Mr. Snyder and his family. But the justices asked difficult questions of both lawyers.

What do we know from previous decisions about this court’s stance on First Amendment rights?

Marcia Coyle: This court for many years has been a very strong First Amendment court. If you recall, just last term this court struck down a federal law that attempted to prohibit the sale and possession of “crush videos.” They have very few exceptions to the protection of First Amendment speech. And basically, what’s being sought here is a funeral exception, and how the court draws the line there. It was evident from the arguments that it’s a very difficult case. Even Justice Breyer, during his questioning, pressed lawyers on what the rule is here, what is the standard to use, and how far to go in order to protect a private funeral.

What sorts of outside groups weighed in on Snyder v. Phelps? Was there support for both sides of the argument?

Marcia Coyle: Not surprisingly, the case has attracted quite a bit of amicus support on both sides. The Snyders are supported by a number of Veteran’s organizations, by 48 states and the District of Columbia, and by a bipartisan group of nearly half the United States Senate. The states mount a very strong defense of their state laws that allow private individuals to recover for injuries like this, as well as informing the court that the states have moved on their own to deal with this problem.

On the other side, you have support for the Phelps’ position by very strong First Amendment supporters like the ACLU, and from major and minor news media organizations, including the Reporters Committee for Freedom of the Press, which is evidence that this is a difficult legal issue and there is this intersection of two areas of the law.

We’ll have more on the case from Marcia Coyle on Wednesday’s NewsHour.

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