STEVE INSKEEP, host:
Today the United States Supreme Court takes up a case of high emotion and high principle. At the center of the case is the father of a soldier killed in Iraq. Protesters came to his son's funeral carrying offensive signs. We will discuss their language in this report, which means this report is not for children and some adults may find it objectionable.
If you need to turn down the radio, just come back in about seven minutes. We'll still be here.
The picketers were sued over their signs. They lost a five million dollar lawsuit. Then a federal appeals court backed them. The court said even outrageous opinion is protected by the First Amendment guarantee of free speech. And that includes the signs at this funeral, signs that read God Hates Fags and You're Going to Hell.
Be advised there's more offensive language in this report by NPR's Nina Totenberg.
NINA TOTENBERG: In 2006, Lance Corporal Matthew Snyder was killed in Iraq. His funeral in Westminster, Maryland drew thousands inside and outside the church to pay their respects. But it also drew a protest from Pastor Fred Phelps and six other members of the Westboro Baptist Church in Topeka, Kansas. Phelps and fellow church members have travelled 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 Pastor Phelps puts it...
Mr. FRED PHELPS (Pastor, Westboro Baptist Church): When the whole country is given over to sodomy and to sodomite enablers, this country needs this preaching. And what's the purpose of it, you say? Because the Lord God told us to do it.
TOTENBERG: Four years after the funeral, the dead soldier's father, Albert Snyder, walks past his son's photo every day and remembers what he lost.
Mr. ALBERT SNYDER: The Phelpses took away my last moment with him on Earth. I have to take away that they tarnished his funeral.
TOTENBERG: Pastor Phelps 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.
Mr. PHELPS: The police had marked off a place on public property for us and surrounded it with some of their tape that they use, you know, and the major of the police department stayed right there, at that little pen, with us seven little souls holding our signs.
TOTENBERG: Phelps says his church does not believe in civil disobedience, that picketers do whatever the police require and they leave before the funeral service begins. Albert Snyder scoffs at such law-abiding rhetoric, noting that the funeral procession was rerouted so he didn't have to see the protesters' signs.
Mr. SNYDER: This was a funeral. 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.
Mr. SEAN SUMMERS (Lawyer): They were essentially hijacking a private moment so they could command an audience.
TOTENBERG: Lawyer Sean Summers will represent Snyder in the Supreme Court today.
Mr. SUMMERS: They turn funerals into a circus. They send out flyers in advance. There were state, local, county police, or ambulance or fire trucks. There was a SWAT team. The reality is, this funeral was disrupted like no private funeral should ever be disrupted.
TOTENBERG: Albert Snyder seethed in the days after the funeral, as he watched TV coverage, and a month later, while cruising the Net, looking for stories about his son, he stumbled across Pastor Phelps' website with a posting that he says caused him to become ill.
Snyder sued Pastor Phelps and his church for intentional infliction of emotional distress, and a jury awarded him $5 million. But a federal appeals court unanimously reversed the judgment. The court declared that because the protesters had followed police instructions and kept their distance, and because their message was 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 Law Professor Jeffrey Shulman argues that it's time for the Supreme Court to balance the harm done to a private individual like Mr. Snyder in an extreme case like this.
Professor JEFFREY SHULMAN (Georgetown University): The point is that words can cause injury for which there needs to be a legal remedy.
Ms. MARGIE PHELPS: This wasn't a balancing(ph). This was a clubbing.
TOTENBERG: Pastor Phelps' daughter Margie is representing him in the Supreme Court.
Ms. PHELPS: 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.
TOTENBERG: Pastor Phelps and his church are backed in this case by a wide variety of conservative and liberal law professors, by just about every major media organization in the country, including NPR, and by the American Civil Liberties Union. ACLU legal director Steven Shapiro...
Mr. STEVEN SHAPIRO (ACLU): The First Amendment really, really was designed to protect a debate at the fringes. You don't need the government, 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.
TOTENBERG: That view has been consistently voiced by the Supreme Court too. 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.
Mr. SNYDER: These people targeted me and my family and they have done this to over 200 other military men and women's families.
TOTENBERG: Again, Albert Snyder.
Mr. SNYDER: 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. Is fag any worse than slut? You tell me that somebody has the right to do that.
TOTENBERG: Despite the power of Mr. Snyder's words, his lawyer faces a daunting task today. 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 Pastor 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 Albert Snyder in this case, though Mr. Snyder asserts he is different because he's a private citizen, while Falwell was a public figure.
Pastor Phelps says that's irrelevant, that the country needs to hear the message that it's awash in sin.
Mr. PHELPS: And if thats your sermon and thats your thesis, then the forum of choice would be in connection with those boys coming home in body bags. Thats the punishment of God Almighty upon this nation.
TOTENBERG: Nina Totenberg, NPR News, Washington.
INSKEEP: And you hear Nina Totenberg here on MORNING EDITION from NPR News.
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