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Argument preview: Protest vs. privacy

No case before the Supreme Court in years has stirred a deeper emotional reaction than has the dispute over the protest tactics of a small Kansas church congregation and its pastor — a reaction so strong that nearly all of the states and the federal government have now passed laws to curb such tactics.  The venue the church and its followers most often choose for their protests are private funerals.  And, as a case against them reaches the Supreme Court, the particular funeral they targeted was the final rites for a Marine killed in a war zone overseas.  It will surely test the Court’s perception of the First Amendment’s tolerance for harshly controversial speech.

The case is Snyder v. Phelps, et al. (09-751).  At 10 a.m. Wednesday, Oct. 6, the Court will hear it in a one-hour oral argument.  All nine Justices are expected to be on the bench for the hearing.  Arguing for Albert Snyder, the father of the dead Marine, will be Sean E. Summers of the York, Pa., firm of Barley Snyder LLC.  And arguing for the church pastor, Fred W. Phelps, Sr., his church, and other members of his family will be one of his daughters, Margie J. Phelps, a Topeka, Kan., attorney.


Starting in 1991, the congregation of Westboro Baptist Church of Topeka, a small religious group always led by Pastor Phelps and comprised mostly of his relatives, has set up pickets at public events to protest what they believe to be America’s pervasive immorality.  In 2005, they began targeting funerals and memorial services for the military dead.  Many of these rites, of course, occur at churches.  Picketing churches is, for Westboro Baptists, entirely intentional.

The Westboro message, spelled out in papers filed in the Supreme Court, is that “the churches and those calling themselves Christian have lost all moral authority by their own sinful way of life, and now actively teach people to sin, instead of urging and warning them not to. After the fashion of the prophets and apostles, and Christ himself, [they] go into public arenas and warn their fellow man not to sin, and that the wrath of God will pour out on them if they do sin, and especially if they forget God’s word, and make proud sin a way of life.”

The “proud sin” of which they complain is homosexuality, including same-sex marriage, fornication, adultery (including, as they see it, divorce and re-marriage), murder (including fetuses who die in abortions), greed and idolatry.   This sin, the Westboro Baptists believe, has become “institutionalized,” partly because America is “a nation that is largely disinterested in and unlearned about the Scriptures.”

Knowing that many who become aware of their tactics strongly disprove, that reaction, the congregation has said defiantly, “makes it much more imperative that the message be delivered.”

One of the funerals they have protested — now, the most highly visible of their picketing incidents — was that of Matthew Snyder, of Finksburg, Md.   On March 3, 2006, then a 20-year-old Marine lance corporal with a combat battalion in Anbar Province, in Iraq, Matthew was riding in a military Humvee.   Apparently speeding, the vehicle’s driver suddenly lost control, and the Humvee crashed, killing Matthew.   His father, Albert Snyder, living in York, Pa., decided that a funeral should be held in Westminster, Md., where Matthew had grown up and graduated from high school.

The services were held on March 10, 2006, at St. John’s Catholic Church in Westminster.  Matthew’s death had drawn considerable media coverage, and the Westboro Baptists saw in the funeral — and the Snyder family story — a fit occasion for their picketing.  They were aroused by the fact that Matthews’ parents had divorced, that the family was Catholic, and that Matthew was a soldier who had died, the Westboro congregation believed, to pay for his country’s sins.

They did not go onto the church grounds, but staged their protest from about 1,000 feet away.  Pastor Phelps, two of his daughters, and four children of one of those daughters, picketed, holding signs that read, among other similar messages: “Don’t Pray for the USA,” “God Hates Fags,” “God Hates You,” “God Hates America,” “Semper Fi Fags,” “Thank God for Dead Soldiers,” “Priests Rape Boys.”  They did not disobey local laws or police directions.

After the protest about Matthew’s death and funeral was continued on the Westboro church’s website, Matthew’s father sued the pastor, two of his daughters, and the Westboro church in federal District Court in Baltimore.  A jury awarded the Snyder family $2.9 million in compensatory damages and $8 million in punitive damages.  The jury found violations of Maryland laws against intentional infliction of mental and emotional distress, invasion of privacy by intrusion into a secluded event, and conspiracy to commit those acts.  The trial judge upheld the verdict, but lowered the punitive damages from $8 million to $2.1 million, resulting in a total award of $5 million.

The Fourth Circuit Court ruled for the Phelps family and their church.  While concluding that the specific message they chose to convey in their protest was “utterly distasteful,” the Circuit Court said the message was protected by the First Amendment because it was only a form of hyperbole, not an assertion of actual facts about Matthew and his family.  While finding the Westboro Baptists’ message “utterly distasteful,” the Circuit Court said it was speech on matters of public concern — including homosexuality in the military, and the political and moral conduct of American and its citizens.

In its ruling, the Circuit Court relied mainly upon Supreme Court rulings that involved actions that were attacked under state tort law, aimed at both media organizations and non-media actors, in lawsuits filed by public officials and “public figures.”  The key precedents at issue, according to the Circuit Court, were the Justices’ 1964 decision in New York Times v. Sullivan,  the key landmark applying First Amendment protection to libel claims, the 1988 decision in Hustler Magazine v. Falwell, insulating a crude sexual parody about the Rev. Jerry Falwell, and the decision in 1990 in Milkovich v. Lorain Journal, involving a newspaper column calling a local wrestling coach a “liar.”

Petition for Certiorari

Matthew’s father took the case on to the Supreme Court on Dec. 23, 2009, raising three questions: whether the Hustler Magazine precedent, protecting harsh speech not based on provable facts, applied when the speech was by a private person about another private person “concerning a private matter”; whether free speech rights trumped the rights of freedom of religion and peaceful assembly, and whether one attending a family member’s funeral should be treated as a “captive audience” insulated from “unwanted communication.”

The petition, putting special emphasis on its view that all that was involved was private activity, on all sides, involving only private matters, argued that extending Hustler to that circumstance would leave “the victimized private individual without recourse.”  The Circuit Court ruling, Snyder argued, would encourage individuals to engage in loose and hyperbolic language so that their remarks qualify for First Amendment protection.  It also asserted that free speech should not get more protection than other First Amendment rights, including the right to assemble peaceably without being targeted as a “captive audience.”

The Phelps family and their church countered, on Jan. 28, that the case was not about private matters at all.  “This is a case involving speech on vital public issues, by a group that is probably fairly characterized as media…, that angered by its content a man who is probably a limited purpose public figure.”  The venue was “a traditionally public forum, far removed from any topic or place that could be deemed private by any analysis,” it asserted.  While conceding that the Supreme Court precedents at issue had not explicitly extended constitutional protections to non-media defendants, the opposition brief said the Fourth Circuit and some others had done so.  In any event, it insisted, the Westboro Baptists, with their publishing activities and website, qualify as media themselves.

There was nothing novel, under First Amendment principles, about the Fourth Circuit ruling, the Westboro Baptists contended.  And there was no disagreement among the lower federal courts on those principles, it added.

The Court, apparently sensing that those principles perhaps were not all that clear, granted review on March 8.

Merits Briefs

Albert Snyder’s brief on the merits maintained its stress on the reach of the Hustler magazine precedent, again asserting that the Court should not extend it to an intentional verbal assault on “a private individual [who] has done nothing to attach himself to a public event or controversy.”   The Rev. Falwell, it noted, sued the magazine in his role as a public figure.

But, in a newly honed argument, the brief sought to put distance between the Westboro Baptists and any matters of public concern that they (and the Fourth Circuit) insisted were the subject matter of their protests.   The Phelps family, it said, only started protesting military funerals after they had been accosted by Marines, and thus their protest was nothing more than retaliation for a “prior, unrelated physical assault.”

Moreover, in a variation on that point, the Snyder brief said that Snyder himself has no connection to any of the “matters of public concern” that were claimed to be at issue in the protests.  He was a private target of a private grievance only, according to the brief.

Expanding on its certiorari argument that the Fourth Circuit would encourage more such harshly worded protests, the Snyder merits brief said the more outrageous the expression, the more protection it would get under the Fourth Circuit’s view of First Amendment speech rights.   It also repeated its “captive audience” assertion, and its plea to the Court to put more balance into the comparison of privacy rights and free speech rights.

The starkly contradictory view that the Westboro Baptists hold of the core issues in the case emerged anew in their merits brief.  Once more, they stressed their claim that their expression fit completely within the Hustler precedent — public speech that cannot be proven false, and that was not uttered with “actual malice.”  “The Constitution,” it asserted, “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.”

And, once again, they portray Snyder as a “limited purpose public figure,” who had spoken openly to the media and who sought media coverage for his public activity following the funeral, bringing him complete success “in persuading the entire country that his son is a hero and WBC is a villain whose words should be utterly disregarded, thereby enjoying all the benefits of a public figure.”

It also expressly disagreed that Snyder had any claim to privacy invasion, since funerals are public events, and that is especially so for the funerals of soldiers.  “No privacy interest should be allowed based on a mourning bubble,” the church brief argued, perhaps too dismissively.

Finally, it said, there was no need to balance different First Amendment rights, as the rights of everyone were fully protected — Snyder to assemble and engage in a religious exercise, without any hindrance from the Westboro Baptists merely speaking on public controversy.

Among amici filings, those of three advocacy organizations do not choose up sides, but wound up making arguments that tended to align them with one side or the other: one argues that there should be more privacy protection for the ritual of burying the dead, one argues for a new trial in the case because of flawed jury instructions, one argues that the Snyder petition does not really pose the issues it raises.  One suggestion is that, perhaps, the case should be dismissed as one that should never have been granted review.

Snyder’s appeal draws fervent, outright support — most conspicuously from 42 members of the U.S. Senate, speaking in favor of the laws passed by Congress and 46 states to limit picketing at funerals and calling for a full Supreme Court embrace of the broad notion that protesters like the Westboro Baptists should not be “free to hijack [this] private funeral as a vehicle for expression of their own hate.” and 48 states and Washington, D.C., similarly defending state laws against what they call “psychological terrorism that targets grieving families.”  Also on that side, among others, are the leading veterans’ organizations, the American Legion and the Veterans of Foreign Wars.

Lining up on the side of the First Amendment (while distancing themselves from the “inexplicable and hateful” message of the Westboro Baptists) are a host of media organizations, liberal and conservative advocacy groups, and First Amendment scholars.  For example, Liberty Counsel, a decidedly conservative legal activist organization, laments the Snyder plea for what this group calls “the premature death of the First Amendment.” A group of First Amendment scholars rather boldly suggested in its brief that the dignity interests of those engaged in burying their dead are not really at issue in this case, because there are ample means — within the concept of “time, place and manner” restrictions tolerated by the First Amendment” — to protect those interests.  Many of the amici filings on this side of the case appear to be most alarmed at the prospect that the Court would significantly expand the “captive audience” concept.


The Court has been served up in this case with a set of mutually exclusive choices — deciding how to interpret the facts of what went on in Westminster, Md., in March 2006, deciding on the meaning and reach of its prior First Amendment rulings on state torts and on media vs. non-media defendants in such lawsuits, on the nature of the Westboro Baptists’ expression and its link — or lack of it — to public questions, on the legal “personality” that Matthew’s father assumed at the time of the picketing and since, and on the definition and scope of “captive audience” doctrine.

It seems clear that, to rule definitively for either side, the Court would have to make most if not all of those choices in one direction.  Each side’s argument depends upon its explicitly tailored view of not only the facts but what those facts mean to the legal concepts.  For all of the effort, on each side, to make the case fit neatly into already established First Amendment norms, this case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one.  But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around  the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference.  If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.