The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who stage anti-gay protests outside military funerals.
The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a Marine killed in Iraq who sued church members after they picketed his son's funeral.
In the majority opinion, Chief Justice John Roberts wrote that even though the picketers' message was "painful," it was still protected. The Constitution, he said, protects "even hurtful speech on public issues to ensure that we do not stifle public debate."
Justice Samuel Alito, who cast the lone dissenting vote, strongly disagreed.
"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.
In a separate opinion, Justice Stephen Breyer suggested that in other circumstances, governments would not be "powerless to provide private individuals with necessary protection."
The ruling comes nearly five months after an emotional argument before the court, which pitted the father, Albert Snyder, against seven religious picketers who demonstrated at the soldier's funeral with signs that read "God hates fags" and "You're going to hell." Though the Marine wasn't gay, the picketers say they were carrying God's message to condemn "sodomite enablers."
The church members traveled with their pastor, Fred Phelps, to Maryland to demonstrate at the funeral of Lance Cpl. Matthew Snyder, who died in Iraq in 2006. They have picketed at hundreds of other military funerals in recent years, preaching their message that the casualties of war are God's punishment for society tolerating, and even embracing, homosexuality.
The Snyder family sued, saying the picketers invaded their privacy.
In arguments before the court last October, Snyder's lawyer, Sean Summers, told the justices that "if context ever matters, it matters at a funeral." But some justices pointed out that the picketers had obeyed all police instructions and stood 1,000 feet away from the church. Moreover, they noted that part of Snyder's emotional distress claim involved a derogatory Internet posting that he came across a month after the funeral.
"Suppose there had been no funeral protest, just the Internet posting," asked Justice Antonin Scalia. "Would you still have had a claim for damages?"
Summers answered yes, because of the "personal, targeted epithets directed at the Snyder family."
Moreover, he contended that just because the picketers were in compliance with the criminal law does not mean they are immune to lawsuits for civil damages.
Justice Breyer noted that Snyder had not seen the picketers' signs at the funeral, that he only saw the signs when he viewed TV coverage afterward. So, the justice asked, where do we draw the line on when you can sue for damages, and when you can't? It was a refrain heard repeatedly throughout the argument.
Summers repeatedly contended that the private, targeted nature of the speech is what makes it unprotected by the First Amendment.
But Chief Justice Roberts wondered obliquely whether it was the content of the speech that was objectionable. "So you have no objection to a sign that said get out of Iraq?" Summers replied that he indeed would have no objection to such signs carried by picketers at a funeral.
Justice Scalia pounced on that answer, observing, "So the intrusion upon the privacy of the funeral isn't really what you are complaining about."
