Supreme Court Set to Hear Arguments on Protests at Military Funerals

October 5, 2010 -- The Supreme Court will hear one of the most controversial cases of the term on Wednesday regarding protests at military funerals by members of a Baptist church.

The case concerns the Westboro Baptist Church and its Pastor, Fred W. Phelps, whose congregation travels the country and protests at the funerals of fallen servicemen. The congregation is made up mostly of Phelps' family members who believe that soldiers are dying in part because there are gays serving in the military. The church members get permits for their protests near funerals and carry signs with slogans such as, "God Hates You" and "God Hates Fags."

The Supreme Court will have to weigh the privacy concerns of families mourning the deaths of their loved ones against the protesters' First Amendment rights of free speech.

In 2006 the church members protested outside the Maryland funeral of Lance Corporal Matthew Snyder, who was killed in Iraq. He was not a homosexual. A few days later the church posted what it called an epic poem on its 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."

Matthew Snyder's father, Albert Snyder, sued the Westboro Baptist Church in federal court arguing that the church had violated his family's privacy and inflicted emotional distress. Snyder ultimately won a judgment of $5 million.

But a federal appeals court threw out the judgment finding that 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.

The three judge panel wrote, "We are constrained to agree that these signs are entitled to First Amendment protection."

Free Speech: How Far is Too Far?

According to Jeffrey Rosen, a professor at the George Washington University Law school, "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."

Margie J. Phelps, who is Pastor Phelps' daughter and serves as the counsel of record for Westboro Baptist Church, said the case provides an "excellent platform for the words that we've faithfully delivered to the nation for twenty years." She says that the church has attended over 600 funerals of soldiers because members of the congregation are trying to get out the message that if the military stops accepting homosexuals, soldiers will stop dying.

"The issue about these dead soldiers is an issue of acute public importance," Margie Phelps said.

Craig Trebilcock, a lawyer for Albert Snyder, detailed how his client was devastated that the members of the church invaded his privacy.

"Mr. Snyder felt that he had one opportunity, a few hours, to say goodbye to his son and they were torn away from him. He can't think about his son's passing and can't get closure because every time he thinks of his son's death and his funeral, he sees the Phelps family carrying a sign saying "you're in hell," said Trebilcock.

The attorney hopes the court will look at the case as a balancing test and rule in favor of Snyder's claim to the right to peaceful and religious assembly.

"We don't believe there is an unlimited First Amendment right to engage in outrageous conduct intended to inflict harm on a private person," said Trebilcock.

"The core of this case" said Professor Rosen, "is whether or not this speech was directed at particular individuals, whether they were captive in a particular enclosed setting and also whether or not the speech was about matters of opinion or of falsifiable facts, and those are the kind of questions the case might turn on."

The case has attracted a flurry of friend-of-the-court briefs on both sides. Lawyers for the 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."

The case is called Snyder v. Phelps.