Supreme Court: Can Westboro Baptist Church protest military funerals?

The US Supreme Court is set to hear a high-stakes battle over free speech on Wednesday in an appeal filed by the father of a US Marine killed in Iraq who claims his son’s funeral in 2006 was disrupted and ruined by an antigay protest.

Albert Snyder had won a $5 million jury verdict against the Rev. Fred Phelps and members of his Westboro Baptist Church for intentional infliction of emotional distress and violating the sanctity of the funeral of his son, Lance Corporal Matthew Snyder. But the judgment was later reversed by a federal appeals court panel that ruled that despite the offensive nature of the protests conducted by the Westboro members, their activities were protected by the First Amendment.

Mr. Phelps is well-known nationally for his fire-and-brimstone opposition to homosexuality. Since 2005, he and members of his Topeka, Kansas-based church have organized protests at military funerals of service members who are not gay in an effort to attract public attention to their cause.

The group believes that God hates homosexuality and is punishing America for its growing acceptance of gay rights by killing US troops overseas.

Family members and others at military funerals have complained about the protests. But Phelps and his supporters insist they have a constitutional right to carry their message to the people at the funerals.

“Snyder had one (and only one) opportunity to bury his son and that occasion has been tarnished forever,” wrote Mr. Snyder’s lawyer, Sean Summers of York, Pa., in his petition urging the high court to take up the case. “Snyder deserved better. Matthew deserved better. A civilized society deserved better.”

The appeals court that reversed the jury verdict did not disagree with that point. But the appeals court said despite the “distasteful and repugnant nature of the words being challenged,” Phelps had a First Amendment right to speak on public issues, even when the speech was highly offensive.

The panel quoted a fellow appeals court judge: “Judges defending the Constitution must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply.”

The opinion continues: “It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.”

Phelps’s lawyer, his daughter Margie Phelps of Topeka, said that contrary to claims by opposing counsel, the Westboro protesters did not disrupt the funeral service.

The seven picketers stood in a place designated by a priest and by the police, over a thousand feet from the funeral, she said. They sang songs and waved signs that included the messages: “You’re Going to Hell,” and “Thank God for Dead Soldiers.” The demonstration was neither visible nor audible to those attending the funeral, she said.

“No one going to the funeral saw them, including [Mr. Snyder],” Ms. Phelps writes. Snyder “did not hear them; and, they were gone when he left the church.”

Margie Phelps says Snyder’s objections to the protest were prompted by news footage he viewed after the event and by written material he viewed on the Internet a month after the service.

Westboro’s lawyer said Snyder’s lawsuit violates the free speech protections of the First Amendment because the church members were engaged in public speech that has not been proven false.

“The Constitution is imperiled if a subjective claim of outrage can be used to penalize into silence speech that does not make false statements of fact, uttered in public arenas on public issues,” Margie Phelps writes.

In asking the Supreme Court to overturn the appeals court decision, Snyder’s lawyer says the high court has never granted categorical protection to the type of speech at issue in the case.

Mr. Summers says his client is a private individual who had done nothing to hold himself up as part of a public event or controversy. “There is no reason for the court to extend absolute protection to expressive conduct that intentionally harms that individual,” he says.

“Mr. Snyder had a substantial privacy interest in attending his son’s funeral without unwanted interference,” he writes. “The Phelpses’ conduct during Matthew Snyder’s funeral caused Mr. Snyder serious emotional and physical hardship and hindered his grieving process.”

Summers adds in his brief: “The Phelpses’ freedom of speech should have ended where it conflicted with Mr. Snyder’s freedom to participate in his son’s funeral, which was intended to be a solemn religious gathering.”

The case is Albert Snyder v. Fred Phelps.