WASHINGTON — — While members of Westboro Baptist Church waved a sign outside the U.S. Supreme Court on Wednesday thanking God for dead soldiers, the nine justices inside tried to define the line at which such public protests become personal attacks during arguments in an emotionally charged case prompted by the picketing of a Maryland Marine's funeral.
Lance Cpl. Matthew Snyder was 20 years old when he was killed in a Humvee accident in Iraq on March 3, 2006. A week later, publicity-seeking members of the fire-and-brimstone Kansas congregation — all strangers to the Snyders — appeared at his family's Catholic funeral service in Westminster with posters proclaiming sentiments like "God Hates America" and "Semper Fi Fags." They later posted online a diatribe blaming Snyder's death on the sins of the country and his divorced parents.
Snyder's father sued for intentional infliction of emotional distress and initially won, though the multimillion-dollar verdict was overturned on appeal. That series of legal decisions vaulted the Maryland case to the country's highest court, where it's testing the boundaries of the First Amendment and putting liberal free-speech advocates in the position of siding with fringe Christians.
"The First Amendment is something that's so critical that it may, in this case, just trump the behavior that most people feel is pretty outrageous," said Carl Tobias, a professor at the University of Richmond School of Law.
The case put several specific questions before the court — addressing the rights of private versus public figures, whether free speech is more important than freedom of religion and peaceful assembly, and whether a funeral constitutes a captive audience that needs protection from certain communication. But at its heart are issues of intellectual freedom and human decency.
Snyder's lawyer, Sean E. Summers, said that the funeral protest was a targeted attack that stripped a family of its right to bury their son with dignity, causing the young man's father physical and mental harm by worsening his diabetes and depression.
"The private, targeted nature of the speech … is what makes it unprotected," Summers said.
But Westboro's side, presented by the lawyer-daughter of the Topeka church's founder, countered with claims that they were simply a "little church" preaching on issues of public interest at a public forum that was likely to draw attention.
The justices — all but the ever-silent Justice Clarence Thomas — asked dozens of questions and offered various hypothetical circumstances in an effort to tease out the border between communication and confrontation.
Justice Antonin Scalia questioned whether the online diatribe should be considered separately from the funeral protest, while Justice Samuel Alito suggested that it provided the context to understand the picketing.
Justice Stephen Breyer called the Westboro statements "very obnoxious," and raised concerns about their being broadcast over television and on the Internet. "What should the rules be there?" he said.
Justice Sonia Sotomayor asked about the basis for Snyder's belief that public speech directed at a private person should be treated differently than such speech directed at a public figure, and Justice Elena Kagan questioned whether states could remedy the situation by banning funeral protests.
Justice Anthony Kennedy asked Summers whether he knew of any similar cases where damages were awarded, but Summers did not. And Chief Justice John Roberts tried to push Phelps beyond the "facts of the case" to discuss the "broader" issues.
"This is a case about exploiting a private family's grief," Justice Ruth Bader Ginsberg said "And the question is: Why should the First Amendment tolerate exploiting this bereaved family?"
The answer could define the scope of the First Amendment. Some fear that if Westboro wins, it would open up individuals to all kinds of hate speech, so long as the speaking is done under the guise of public-interest protest. Others worry that a win for Snyder will crush public discourse.
"Free speech needs breathing room," Matthew Staver, founder of the Liberty Counsel religious freedom organization, said in a statement. "I would rather tolerate a person's offensive speech than be silenced by the force of law."
Free-speech advocates — including the American Civil Liberties Union, the Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression — filed briefs in support of the tiny but loud Baptist church, which is made up of family members of founder Fred W. Phelps Sr., a retired lawyer who was disbarred decades ago for harassing a court reporter.