Court considers Westboro Baptist Church’s anti-gay protests at military funerals
The Supreme Court struggled Wednesday with the question of whether the Constitution’s guarantee of free speech can be restricted when a protest is aimed at a private family at its moment of most intense grief.
The court was considering the case of the Westboro Baptist Church of Kansas, whose anti-gay protests have targeted the funerals of fallen soldiers from the wars in Iraq and Afghanistan. Composed almost entirely of the family members of its founder, the Rev. Fred W. Phelps, the church contends the deaths are God’s revenge for the country’s tolerance of homosexuality.
“We’re talking about a funeral,” said lawyer Sean E. Summers, who is representing Albert Snyder, whose 20-year-old son Matthew’s funeral was picketed by the group in 2006. “If context is ever going to matter” in deciding when First Amendment rights may be curtailed, Snyder said, this had to be it.
But Margie J. Phelps, a daughter of the church founder who argued the case for her family, said her “little church” is protected in preaching its profound belief: “If you want them to stop dying, stop sinning.”
Albert Snyder sued Phelps and argued at trial that the demonstration at his son’s funeral invaded his privacy, caused emotional distress and violated his rights to free exercise of religion and peaceful assembly. He said a treatise posted on the church’s Web site specifically mentioned Matthew and his family.
A jury awarded Snyder more than $10 million, which was cut in half by the judge and then overturned by the U.S. Court of Appeals for the 4th Circuit in Richmond. A three-judge panel said that although Phelps’s rhetoric was offensive, it was protected as speech concerning issues in the national debate.
Justice Ruth Bader Ginsburg pressed Summers. The protestors obeyed all laws and complied with instructions from police about where they could stand, she said. Has a group ever been forced to pay damages for lawful conduct? she asked.
Nearly all of the justices referred to the group’s noxious practices; a sampling of the signs carried at Snyder’s funeral at St. John’s Catholic Church in Westminster, Md., included “God Hates the USA/Thank God for 9/11,” “Semper Fi Fags,” “Thank God for Dead Soldiers” and “Priests Rape Boys.”
Even Ginsburg, who seemed most skeptical that Snyder could sue over the protests, noted that the case was about “exploiting a private family’s grief.”
Other justices, too, seemed torn. Several were skeptical of Summers’s argument that Snyder should be able to sue under Maryland’s tort laws. Justice Sonia Sotomayor noted that Snyder was arguing that he was a private figure, but she wondered what precedent of the court allowed a group to be sued over speech about a public issue even if directed at a private person.
Justice Samuel A. Alito Jr. was the most outspoken in sympathy to the notion that some conduct could go too far. He drew the hypothetical case of a grandmother being confronted at the graveside of her soldier grandson.
Phelps said she could not answer all hypotheticals, but that stalking or using “fighting words” would not be protected.
The justices also debated the missive that another church member, Shirley Phelps-Roper, wrote for the organization’s Web site several weeks later. It said that Snyder’s membership in the Catholic Church and his divorce from Matthew’s mother had made his son a prime target for God’s punishment.
Snyder said the stress from the events made him physically sick, worsened his diabetes and deepened his depression. He is supported by the attorneys general of 48 states and the District of Columbia. He has also drawn backing from the majority and minority leaders of the Senate, along with a bipartisan mix of 40 senators.
The church has been supported by First Amendment advocates and media groups, who have denounced the Phelpses’ message but defended their right to free speech.