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MARY LOUISE KELLY, Host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Mary Louise Kelly.

ROBERT SIEGEL, Host:

And I'm Robert Siegel.

SIEGEL: When can picketers at a military funeral be sued for inflicting emotional distress on the family of a dead soldier?

NPR: The story contains some language that some listeners may find offensive.

NINA TOTENBERG: The case pits Albert Snyder, 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 what they call sodomite enablers.

On the steps of the Supreme Court today, lawyer Margie Phelps, representing the picketers - including her father - said they were at the funeral to remind the nation that it's being punished for its sins.

LOUISE KELLY: The rule of law is, the mere fact that you take offense at words, or call yourself having your feelings hurt over words, is not enough to shut up the speech.

TOTENBERG: But Albert Snyder, the father of the dead soldier, said no family should have to endure such protests.

LOUISE KELLY: There is a civilized way to express an opinion in America, but it does not involve intentionally inflicting emotional distress on others, intentionally harming a private citizen at a private funeral.

TOTENBERG: 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 a thousand feet away from the church. Moreover, they noted that part of Mr. Snyder's emotional distress claim involves a derogatory Internet posting that he came across a month after the funeral.

J: Suppose there had been no funeral protest, just the Internet posting. Would you still have had a claim for damages?

LOUISE KELLY: Yes, because of the personal, targeted epithets directed at the Snyder family.

Lawyer Summers said that just because the picketers were in compliance with the criminal law does not mean they're immune to lawsuits for civil damages.

Justice Breyer noted that Mr. Snyder had not seen the picketers' signs at the funeral; that he only saw them when he viewed TV coverage. So where do we draw the line on when you can sue for damages and when you can't? asked the justice. It was a refrain heard repeatedly throughout the argument.

Lawyer Summers contended that the private, targeted nature of the speech is what makes it unprotected by the First Amendment.

C: So you have no objection to a sign that said, Get Out of Iraq?

LOUISE KELLY: No.

J: So the intrusion upon the privacy of the funeral isn't really what you're complaining about.

J: If you were a Marine, and I went up to you objecting to the Iraq War, and I said you are perpetuating the horrors of that war, would the Marine have grounds to sue?

Lawyers Summers first said yes, then no.

Justice 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?

J: A law like that wouldn't bar someone from coming up to Mr. Snyder at the funeral and spitting in his face.

J: You'd have to be a lot closer than the law allows to spit in someone's face.

Next up to the lectern was the protesters' lawyer, Margie Phelps.

J: Suppose your group or some other group picks a wounded soldier and follows him around, demonstrates at his home, his workplace, his church, saying offensive and outrageous things. Does that soldier have a claim for intentional infliction of emotion distress?

LOUISE KELLY: Any nonspeech activity like stalking, importuning, being confrontational could, indeed, justify a damage suit.

Q: And what if it's just a demonstration at the home or the workplace or the church?

LOUISE KELLY: Then I don't believe that would be the basis for a lawsuit.

J: 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?

Lawyer Phelps argued that if demonstrators stay within the law on the 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.

LOUISE KELLY: No. Every speaker tries to get maximum exposure for his cause.

J: Your argument depends on the proposition that this is speech on a matter of public concern. So what if someone believes that African-Americans are inferior, and then berates an African-American on the street with racial hatred?

LOUISE KELLY: I think the issue of race is a matter of public concern. But approaching an individual up close to berate them gets you out of the zone of First Amendment protection.

J: I'm looking for a line.

LOUISE KELLY: There has to be some actual physical sound, sight, intrusion - if you're talking about invasion of privacy.

J: So what's the line between strong opinion on a public issue, and personalizing it to create hardship for an individual?

That's the question facing the court. And today's argument gave few hints on how the justices will resolve it.

Nina Totenberg, NPR News, Washington.

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