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The U.S. Supreme Court takes up a case of high emotion and high principle Wednesday. At issue is whether the father of a Marine killed in Iraq can sue picketers who showed up at his son's funeral with signs that read "God Hates Fags" and "You're Going to Hell."
A federal appeals court invalidated a $5 million judgment against the picketers, concluding that even outrageous opinion is protected by the First Amendment's guarantee of free speech.
The Snyder Funeral
In 2006, Lance Cpl. Matthew Snyder was killed in Iraq. His funeral in Westminster, Md., drew thousands inside and outside the church to pay their respects. But it also drew a protest from the Rev. Fred Phelps and six other members of the Westboro Baptist Church in Topeka, Kan. Phelps and fellow church members have traveled the country in recent years, picketing at hundreds of military funerals to protest homosexuality in the service.
They did not contend that Matthew Snyder was gay. Rather, as Phelps puts it: "When the whole country is given over to sodomy and sodomite enablers ... the country needs this preaching."
Phelps contends that a country awash in sin needs to know that "boys are coming home in body bags. That's the punishment of God almighty upon this nation."
But for Albert Snyder, the father of the dead Marine, the protests inflicted a deep wound. When he walks past his son's photo every day, he remembers, "The Phelpses took away my last moment with him on Earth. ... They tarnished his funeral."
Phelps is unmoved. He notes that he followed his usual practice of notifying the police that he would be protesting at the funeral, and that he followed their instructions to stand 1,000 feet away from the church entrance.
"The police had marked off a place on public property for us and surrounded it with some of their tape that they use," Phelps says. "And the major of the police department stayed right there, at that little pen, with us seven little souls holding our signs."
Phelps says his church does not believe in civil disobedience, that picketers do whatever the police require and leave before the funeral service begins.
Snyder scoffs at such law-abiding rhetoric, noting that the funeral procession was rerouted so he didn't have to see the protesters' signs.
"This was a funeral," an anguished Snyder says, his voice rising. "This wasn't a parade going down the street. I shouldn't have to look away from anything at my own child's funeral. That's absurd."
"They were essentially hijacking a private moment so they could command an audience," says Sean Summers, Snyder's lawyer, who will represent him in the Supreme Court.
"They turn funerals into a circus. They send out fliers in advance. There were ... state, local, county police; there were ambulances; there were fire trucks; there was a SWAT team," Summers says. "The reality was, the funeral was disrupted like no private funeral should ever be disrupted."
Anger, And A Lawsuit
In the days after the funeral, Snyder seethed as he watched TV coverage, and a month later, while cruising the Internet looking for stories about his son, he stumbled across Phelps' website, which had a posting that so revolted him, he says, it caused him to be physically ill.
Snyder sued Phelps and his church for intentional infliction of emotional distress, and a jury awarded him $11 million, which was reduced by the judge to $5 million. But a federal appeals court unanimously reversed the judgment.
The appeals court declared that because the protesters had followed police instructions and kept their distance, and because their pickets were nothing more than outrageous opinion, they were protected by the First Amendment right to freedom of speech.
The slain soldier's father appealed to the Supreme Court, backed by veterans' groups and leaders of both political parties. Georgetown University law professor Jeffrey Shulman argues that it is time for the Supreme Court to balance the harm done to a private individual like Albert Snyder in an extreme case like this.
"The point is that words can cause injury for which there needs to be a legal remedy," Shulman says.
"This wasn't balancing; this was a clubbing," responds Margie Phelps, the pastor's daughter, who is representing her father in the Supreme Court.
"All you have to do is try to picture yourself having a deeply held, strongly dissenting, wildly unpopular viewpoint. And imagine where that would leave you, if you could be exposed to liability that way," she adds.
Free-Speech Advocates Back Church
Phelps and his church are backed in this case by a wide variety of conservative and liberal law professors, by every major media organization in the country, including NPR, and by the American Civil Liberties Union. All deplore his message but defend his right to say even odious things.
"The First Amendment really was designed to protect a debate at the fringes," says ACLU Legal Director Steven Shapiro. "You don't need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive -- because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that."
That view has been consistently voiced by the Supreme Court, as well. But in an Internet era, when private citizens can be ridiculed and harassed online, it may be that the court is trying to carve out some exceptions.
"These people targeted me and my family, and they have done this to over 200 other military men and women's families," Snyder says.
"I want to know how you would feel if somebody stood 30 feet away from the main vehicle entrance of a church when you're trying to bury your mother, with a sign that says 'Thank God for Dead Sluts' -- you tell me that shouldn't be illegal," Snyder says. "Is 'fag' any worse than 'slut'?"
Snyder also worries about troop morale when soldiers know that their families could experience what the Snyders did. And he sees a potential for violence, contending it is just a matter of time before some unstable person shows up at one of these protests with a gun.
Despite the power of Snyder's words, his lawyer faces a daunting task. More than 40 states, including Maryland, have enacted laws barring protesters from standing within 100 or 200 feet of a funeral site. But this protest was well outside that radius.
More to the point, the court in recent decades has given near immunity to speakers for their opinions, as long as the speaker complies with regulations on the time, place and manner of the speech, which Phelps did.
In 1988, the court unanimously set aside a damage award won by evangelist Jerry Falwell, who sued Hustler magazine over a parody that suggested he'd had sex with his mother. The claim -- intentional infliction of emotional distress -- was the same as that made by Snyder in this case, though Snyder asserts he is different because he's a private citizen, while Falwell was a public figure.
Coincidentally, after Sept. 11, 2001, Falwell expressed views similar to those of the funeral protesters in the Snyder case. He said homosexuals, feminists, abortion-rights advocates and civil liberties groups were partially to blame for the terrorist attack.
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