Members of the Westboro Baptist Church picket in front of the Supreme Court in Washington, D.C., on Wednesday.
At an emotional argument before the U.S. Supreme Court on Wednesday, the justices struggled with a case testing whether picketers at a military funeral may be sued for inflicting emotional distress on the family of a dead soldier.
The case, Snyder v. Phelps, pits the father of a Marine killed in Iraq 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."
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Albert Snyder leaves the Supreme Court building in Washington, D.C., after Wednesday's arguments. His son's funeral was picketed by members of the Westboro Baptist Church, which preaches that U.S. deaths in Afghanistan and Iraq are punishment for Americans' immorality.
The picketers, all members of the Westboro Baptist Church in Topeka, Kan., traveled with their pastor, Fred Phelps, to Maryland to demonstrate at the funeral of Lance Cpl. Matthew Snyder, who died in Iraq. 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.
Cpl. Snyder's father, Albert Snyder, sued the picketers for intentional infliction of emotional distress and won a $5 million judgment, but a federal appeals court threw out the award, declaring that even outrageous and offensive opinion is protected by the First Amendment right of free speech.
Inside the courtroom, 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 involves 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.
Drawing The Line
Justice Stephen 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 John 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."
Justice Sonia Sotomayor moved back to the line-drawing dilemma asking: If you were a Marine and I went up to you, objecting to the Iraq war, and I said that "you are perpetuating the horrors" of that war, would the Marine have grounds to sue?
Summers first said yes, then no.
Justice Elena Kagan noted that the court has long been protective of even outrageous opinions because to impose damages based on a jury's tastes, likes or dislikes is to undermine the whole idea of free speech. Why, she asked, wouldn't a general statute that simply bars demonstrations within 500 feet of a funeral take care of the problem?
Justice Samuel Alito interjected that a law like that wouldn't bar someone from coming up to Snyder at the funeral and spitting in his face. Justice Ruth Bader Ginsburg caustically pointed out that "you would have to be a lot closer than the law allows to spit in someone's face."
If Summers, representing Snyder, had a difficult time of it, Margie Phelps, representing the picketers, faced even tougher questioning. Phelps is the daughter of Pastor Phelps, the lead picketer in the case. And the justices threw one hypothetical after another at her.
"Suppose your group or some other group picks a wounded soldier and follows him around, demonstrates at his home, his workplace, at his church," postulated Justice Kagan. Suppose in doing that, they are saying offensive and outrageous things similar to those spouted by the protesters in this case. Does that soldier have a claim for intentional infliction of emotional distress?
Phelps answered that "any nonspeech activity like stalking, importuning, being confrontational" could indeed justify a damage suit.
Kagan followed up, asking whether there could be a claim for demonstrations, without disruption, at a person's home, workplace or church. Phelps said that in that case, there would be no basis for a lawsuit.
Justice Ginsburg neatly summed up the issue in its most basic terms: "This is a case about exploiting a private family's grief, and the question is: Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for getting across your message?"
Phelps argued that if demonstrators abide by the law's requirements for time, place and manner of their protest, they know when they are acting legally. The notion of exploitation, however, is so wide open, she said, that it provides "no principle of law to guide people as to when they could or could not" protest.
Chief Justice Roberts noted that the protesters here had selected the funeral as a demonstration site to get publicity for their cause. Does that matter, he asked?
No, Phelps said flatly, because every speaker tries to get maximum exposure for his cause.
Taking another tack, Justice Alito observed that the picketers' argument "depends on the proposition that this is speech on a matter of public concern," and he posed yet another hypothetical: What if someone believes that African-Americans are inferior and then berates an African-American on the street with epithets of racial hatred?
While contending that "the issue of race is matter of public concern," Phelps conceded that "approaching an individual up close to berate them gets you out of the zone of [First Amendment] protection."
What Is Appropriate?
Justice Anthony Kennedy, however, seemed to reject Phelps' conception of what constitutes a matter of public concern. "In a pluralistic society," anything can "turn into a public issue," he noted, while at the same time suggesting that can't be enough to justify allowing protesters to follow people around with pickets.
Justice Breyer, citing the right to be let alone, noted the First Amendment does not bar state damage suits when they are appropriate. But what is appropriate?
The justice again said he was "looking for a line."
Phelps replied that "there must be some actual physical sound, sight, intrusion if you are talking about invasion of privacy."
Justice Sotomayor inquired, what is the line between strong opinion on a public issue and personalizing it to create "hardship for an individual?"
That is the question facing the court — and Wednesday's argument gave few hints on how the justices will resolve it. It did appear, though, that some justices who just months ago expanded the right of free speech to allow corporations to spend unlimited amounts in candidate elections are looking for a way to limit the rights of picketers at funerals.