The attorney representing members of a Topeka, Kan. church argued before the U.S. Supreme Court today that carrying offensive signs and demonstrating outside of military funerals is protected speech under the First Amendment.
Margie J. Phelps, the lead counsel for the Westboro Baptist Church and the daughter of the church's pastor, Fred Phelps, told the justices that her group pickets funerals with "great circumspection and awareness of boundaries" when it carries signs with offensive messages such as "God Hates you" and "God Hates Fags." She said the group files permits with police before every protest and stays in restricted areas, often hundreds of yards from the proceedings.
The case, one of the most controversial on the court docket, was brought by Albert Snyder, who sued the church, after members picketed the funeral of his son, Lance Corporal Matthew Snyder, who died in Iraq. Later, members posted an epic poem on the church Web site entitled, "The Burden of Marine Lance Cpl. Matthew Snyder." It was addressed to his parents and said in part, "They taught him to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity."
Snyder won a judgment of $5 million, which was later thrown out by a federal appeals court which ruled the protest signs weren't aimed at Snyder specifically, and said the statements are protected by the Constitution because they contained "imaginative and hyperbolic rhetoric" meant to spark debate.
On Wednesday, lawyers for Snyder argued that the justices should reinstate the monetary award. "We are talking about a funeral", Sean E. Summers argued, " If context was ever going to matter, it has to matter for a funeral."
The justices asked whether the signs referred to Snyder directly, and whether or not the funeral members, who were unable to actually witness the demonstrations because the demonstators were kept 1000 feet away, were even able to experience the protest.
Justice Antonin Scalia said at one point, "simply to say you can have a protest within a certain distance is not to say you can have a protest within a certain distance that defames the corpse."
Justice Samuel Alito posed a hypothetical regarding a mother who has raised a son who was killed in war, and while she's waiting to take a bus, she is confronted by a protester.
"And while she's at the bus stop, someone approaches and speaks to her in the most vile terms about her son. Is that protected by the First Amendment?" Alito asked.
Attorney Phelps dodged the question but then was pushed by Chief Justice John Roberts.
"What is your answer to Justice Alito's question? Do you think the First Amendment would bar that cause of action or not?" Roberts ask.
Phelps replied, "There would have to be a very narrow circumstance where it didn't, Mr. Chief Justice. That's my answer."
Justice Elena Kagan, asked Phelps, "Suppose your group or another group ... picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church. ... Does that person not have a claim for intentional infliction of emotional distress?"
Phelps replied that non-speech activity could indeed give rise to a potential claim, but said that her group received permits and stayed within the permitted boundaries when they protested.
At one point Justice Stephen Breyer, searching to draw a line regarding posting items on the Internet like the group's epic poem said, "I don't know what the rules ought to be. "
Jeffrey Rosen, a law professor at the George Washington University Law School said, "This case might not have huge constitutional dimensions, but it does raise this very important question, namely: how much protection do relatively private figures have against hurtful, outrageous, insulting, emotionally-aggravating speech?"
After the arguments, Albert Snyder appeared outside the court and, with emotion, read a statement, calling the day his son died, the "worst day of his life." His grief was compounded, he said, by being targeted by the church's demonstrations. "It is one thing no family should ever have to go through."
Margie Phelps spoke outside the court as well, and said, "There is no line that could be drawn here without shutting down speech." She told reporters, "You should all be thanking us for that heavy lifting we did in there."
At one point she broke into song with members of her congregation who stood behind her.
The case has attracted a flurry of friend-of-the-court briefs on both sides. Lawyers representing 40 states which have passed laws regulating protests at funerals, have weighed in on Snyder's behalf.
"The States should be accorded their traditionally recognized police powers to adopt and enforce reasonable time, place, and manner regulations on activities that may disrupt funerals, and to define civil tort liability for conduct that intentionally inflicts emotional distress and invades sacred privacy interests," said the brief, written by the Attorney General Steve Six of Kansas, who was joined by the other states.
The American Civil Liberties Union, however, has weighed in on behalf of the free speech concerns of the Phelps and their church. In court papers, lawyers for the ACLU wrote, the "First Amendment guarantees of freedom of speech and the free exercise of religion are designed to protect the right of speakers to voice their views on matters of public concern and to express their religious convictions."