When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction? If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a “funeral exception” to the right to speak out in public in outrageous and hurtful ways. It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices. Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”
The two lawyers in the case came well prepared to argue both the facts and the law — from diametrically opposed perspectives — and, despite the overall mood along the bench, managed to do so quite impressively. But the anguish of Albert Snyder, father of a dead soldier, and of the other funeral-goers in Westminster, Md., four years ago, and the recollection of the ugly messages that protesters near the scene had displayed, so tugged at feelings that a video of them might have seemed to be playing, over and over again, on the frieze that rings the chamber’s ceiling.
The Court went searching, through hypothetical examples, for ways to define limits on protests at funerals, but usually managed to conjure even more sympathetic targets of hateful speech — such as a grandmother, leaving a cemetery where her soldier grandson killed in combat had just been buried, waiting at a bus stop and being harangued, “in vile tones,” by an anti-war protester expressing pleasure at the soldier’s demise (the scenario suggested by Justice Samuel A. Alito, Jr., and embellished by Justice Antonin Scalia).
Another telling sign was Chief Justice John G. Roberts, Jr., repeating with increasing force the accusation that the Westboro Baptist funeral protesters had singled out the dead soldier’s father and the funeral, not to enter a discussion about public affairs including morality, but simply to achieve “maximum publicity.” Snyder, he said, sought only to bury his son, not to make any kind of statement. The Chief Justice was openly skeptical of the small church’s claim, made by its lawyer, that “it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message.”
It is no surprise, of course, that the Justices get deeply interested in the facts whenever they confront a new plea to withhold the First Amendment’s protection from a particular kind of message, because the particulars can strongly influence the law. And, it also is no surprise that First Amendment cases tend to focus on messages that are more upsetting than decorous parlor speech.
But judicial detachment is not likely to be conspicuous when a lawyer steps to the podium and begins with the simple statement: “We’re talking about a funeral,” and immediately laments the loss of the quiet, the dignity that everyone expects to come with such rites. All kinds of mental images, familiar and perhaps always painful, get stirred up by such references. And, when everyone in the room is familiar with how the quiet dignity was threatened this time, as was true on Wednesday, even a constitutional case about free speech would not have had much chance of being only about law.
By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lance Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer. The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event. As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”
That approach also seemed to hold some appeal for Justice Anthony M. Kennedy, who expressed his concern that the Westboro Baptists were seeking a constitutional right to follow around any individual who had a particular trait that the pursuers disliked, and making that person a target of outrageous comments. In addition, Kennedy openly invited counsel to “help us in finding some line” that would make such pursuits unprotected as free speech.
Sean E. Summers of York, Pa., the lawyer for the dead Marine’s father, wanted a very simple constitutional line — tailored to follow exactly the facts as he portrayed them. The services for Matthew Snyder were a private event, it was disrupted by private individuals, who had made the private Snyder family its special target for its abuse, so, to Summers, the First Amendment has no role to play. To Summers, there was no public policy issue involved, just a message of personal intolerance.
The Westboro Baptists’ lawyer — family member Margie J. Phelps, of Topeka, Kan. — wanted an equally simple constitutional line — fitting her version of the facts. Albert Snyder had intentionally turned his son’s funeral into a public media event and himself into a public advocate, the protesters showed up to debate him on the sins of America and the consequences, and so, to Phelps, the First Amendment provided the usual shield for speech on “matters of public concern.”
While the Justices (all except Justice Clarence Thomas) were active in the argument and energetically questioned both of the lawyers, there was a notable tonal difference. The questions to Summers were probing but respectful, in general. The questions to Phelps, on the other hand, were sometimes heavy with skepticism, and, from some of the Justices, displayed implicit hostility. The Chief Justice and Justice Alito seemed the most skeptical, but Justice Kennedy made little effort to conceal his discontent.
Especially given the atmosphere that Phelps confronted (and the pre-argument skepticism about her likely performance, since she is a member of the Westboro Baptists family and has shared in the scorn shown them in the media), she gave a well-honed argument and did not yield to any temptation to respond in kind to the tone of many of the questions. She made only one reference to the family’s small church, referring to it as “a little church where the servants of God are found,” but it did not sound as if she were trying to gain sympathy for it or for its strongly-embraced cause of lecturing America for its sins.
Justice Breyer, as is his norm, spent the most time thinking out loud about possible ways to decide the case. But Justices Elena Kagan and Sonia Sotomayor appeared to go the furthest to push both lawyers to refine their arguments, and deal with larger implications of the First Amendment controversy at issue.