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Funeral-protest case to test boundaries

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — If you want to find out more about the Westboro Baptist Church of Topeka, Kan., type its name and Google will direct you to the church’s Web site:

A visit to that site today, however, yielded little information about the news from yesterday that will put the church in the national spotlight for the next year: the U.S. Supreme Court agreed to consider a case challenging the church’s decades-long anti-gay protest campaign that has led to hundreds of abrasive protests at funerals of slain U.S. soldiers and at other events.

The high court is usually a defender of offensive speech. As a result, the fact that it took up the case of Snyder v. Phelps could be a signal that it views unwelcome speech in the intensely private setting of funerals — especially military funerals — as “beyond what they are willing to protect,” said University of Kansas School of Law professor Stephen McAllister, who has written about funeral protests and the First Amendment. “It will be an interesting case. The justices might not line up in the way they usually do.”

For example, Justice John Paul Stevens, usually counted as a liberal vote in favor of First Amendment rights, has voted to uphold laws banning flag-burning, another act of expressive conduct widely seen as offensive.

The funeral-protest case, which will be argued in the Court’s next term beginning in the fall, was brought by Albert Snyder, the father of a Marine who died in Iraq in 2006. When Matthew Snyder’s funeral was held in a Catholic Church in Westminster, Md., Westboro pastor Fred Phelps and his followers were picketing nearby with signs that read, “Thank God for Dead Soldiers,” “Semper Fi Fags,” and “God Hates You,” among other messages.

Phelps justifies his protests as a high-impact way of conveying his message that God is punishing the United States for tolerating homosexuality.

But because the protests use such virulent language and take place near funerals, Phelps’ activities have triggered legislation in more than 40 states and the federal government. To varying degrees, the laws seek to limit such protests with regulations specifying when and where such demonstrations can take place in relation to funerals. Some of the laws have been challenged on First Amendment grounds. (For a survey of funeral-protest laws and controversies, see Funeral protests.)

But the case before the high court does not directly involve laws regulating funeral protests. Instead, it focuses on the state tort-law claims that Snyder invoked in suing Phelps, including intentional infliction of emotional distress and invasion of privacy.

Based on those claims, Snyder won a $10 million punitive and compensatory damage award before a federal jury in Maryland — a judgment later cut in half by the trial judge.

But on appeal, the 4th U.S. Circuit Court of Appeals threw out the case altogether. Two judges of the 4th Circuit panel, Robert King and Allyson Duncan, found in Snyder v. Phelps that, despite the “distasteful and repugnant nature of the protests, the speech was constitutionally protected.” The third judge, Dennis Shedd, agreed the judgment against Phelps should be reversed, but on grounds other than the First Amendment.

In the petition to the Supreme Court, lawyers for Snyder said the demonstration disrupted the funeral and caused emotional pain to Snyder's family. “Phelps’ activities added insult and injury during a time of grief and mourning,” wrote lawyer Sean Summers behalf of Snyder's father. “Matthew deserved better. A civilized society deserved better.”

On the state tort claim issues, Snyder asks the Court to rule whether its 1988 precedent Hustler v. Falwell applies to litigation between private, rather than public, figures. In the Hustler case, which originated in the same federal circuit that handled the Snyder case, the Supreme Court cited the First Amendment as a limitation on the ability of public figures to invoke intentional infliction of emotional distress as a way of punishing offensive speech. Snyder claims that in its ruling in his case, the 4th Circuit extended the reach of the Hustler case too far.

In addition, Snyder asserts that the 4th Circuit improperly ranked Phelps’ First Amendment claim as more significant than those of the Snyder family. “The 4th Circuit has determined that Phelps’ First Amendment rights are more important than Snyder’s right to exercise his religion or assemble peacefully.”

Phelps’ brief in opposition to granting Supreme Court review rebuts the disruption argument, asserting that the protest took place on a public right of way 1,000 feet away from the widely publicized funeral, and that the family members did not even see the protesters as they arrived. The priest who conducted the funeral testified that the demonstration did not disrupt the ceremony.

Phelps also argued that because the protesters’ speech was religious and covered public matters, it should be protected. “Given the magnitude and gravity of the problems facing this once great nation,” said Margie Phelps an attorney for the church and one of Fred Phelps’ daughters, “nothing could be more important at this hour than the question of how God is dealing with this nation, especially on the battlefield.”


Justices agree to hear funeral-protest case

Court to consider whether church has right to picket military funerals.
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    4th Circuit affirms protection for repulsive speech

    By Douglas Lee In troubling funeral-protest case, family’s pain cannot trump hysterical Westboro Baptist Church protester's First Amendment freedoms. 09.30.09

    2009-10 Supreme Court case tracker

    Funeral protests

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