- The Washington Times - Wednesday, October 6, 2010

The Supreme Court took on the year’s most emotionally charged case Wednesday and, while the justices sharply questioned both sides, they gave little indication of whether they would decide if a fringe group of protesters could be sued for wielding inflammatory, anti-military signs at the funerals of troops.

Justice Ruth Bader Ginsburg asserted that the protest was aimed at “exploiting a family’s grief,” adding: “Why should the First Amendment tolerate exploiting this Marine’s family when you have so many other forums for getting across your message, the very same day you did?”

But, in a somewhat unusual move, Justices Stephen G. Breyer and Antonin Scalia seemed to agree that the case may not be about a funeral.

Justice Breyer, a stalwart of the court’s liberal wing, noted that Albert Snyder, the soldier’s father, did not see the signs at the funeral that declared “Thank God for Dead Soldiers” and “You’re Going to Hell.” He learned what they said by seeing subsequent news reports and logging onto a website operated by the group, the Westboro Baptist Church in Topeka, Kan.

“I don’t know what the rules ought to be there,” Justice Breyer said. “That is, do you think that a person can put anything on the Internet? Do you think they can put anything on television even if it attacks, say, the most private things of a private individual?”

Sean E. Summers, Mr. Snyder’s attorney, argued that if someone continuously posted something hurtful on the Internet about someone, whether it was true or not, that could rise to the level of intentional affliction of emotional distress, which is alleged by Mr. Snyder.

Mr. Snyder sued Fred Phelps, who founded the Topeka church, for invasion of privacy and intentional emotional distress during his Marine son’s funeral, and won a $5 million verdict. But the 4th U.S. Circuit Court of Appeals set aside the verdict, saying the protest included “hyperbolic” speech protected by the First Amendment. Mr. Snyder appealed the 4th Circuit’s ruling to the Supreme Court.

Justice Scalia, a mainstay of the court’s conservative wing, seemed skeptical of Mr. Summers’ assertion that Mr. Snyder could have a case against the Westboro Baptist Church simply because of what he saw on the groups’ website.

“It’s his choice to watch them, but if he chooses to watch them, he has a cause of action because it causes him distress?” Justice Scalia said with more than a hint of incredulity.

Mr. Summers said the forum of the protest is significant.

“We are talking about a funeral. If context is ever going to matter, it has to matter in the context of a funeral,” he said. “Mr. Snyder simply wanted to bury his son in a private, dignified manner. When the respondent’s behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the state of Maryland.”

The case brought a charged atmosphere to the high court as church supporters, some carrying vulgar anti-gay and anti-military signs, clashed with college students and other protesters outside. Church members carried similar signs during the 2006 funeral of Marine Lance Cpl. Matthew Snyder.

The group, which consists of fewer than 100 people, most of whom are related to Mr. Phelps, have been a frequent and infuriating presence at military funerals in recent years. It’s best known for various anti-gay demonstrations and teaching that “God hates America,” thus U.S. soldiers, because the government tolerates homosexuality.

The justices also seemed troubled by arguments made for the opposing side by Margie Phelps, a lawyer who is Mr. Phelps’ daughter. She sought to undercut the invasion of privacy argument in the case by asserting that Mr. Snyder made himself a public figure by engaging in what amounted to political speech during interviews with the local media after his son’s death.

Specifically, she cited statements he made calling the war “senseless” and questioning how many more families will have to suffer such losses. She said the protest was a protected form of political speech in response to Mr. Snyder’s comments to the media.

“A little church, where the servants of God are found, say we have an answer to your question that you put in the public airwaves and our answer is you have got to stop sinning if you want this trauma to stop happening,” she said.

“But your argument depends on the proposition that this is speech on a matter of public concern, is that correct?” inquired Justice Samuel A. Alito Jr.

“Absolutely, Justice Alito,” Ms. Phelps responded.

Justice Alito followed that up with a hypothetical question about whether such speech would extend to a person who confronts black people on the street and “berates them with racial hatred” because of a prejudiced belief that they are inferior.

Ms. Phelps said such speech regarding race is a “matter of public concern,” though she hedged a bit saying that “approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.”

Still, Justice Anthony M. Kennedy expressed skepticism about Ms. Phelps’ definition of what could qualify as “public concern.”

“That simply points out that all of us in a pluralistic society have components to our identity: We are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young,” he said. Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact.”

Chief Justice John G. Roberts Jr. seemed similarly concerned about Ms. Phelps’ definition of a public figure.

“My question is, if he simply buries his son, is he a public figure open to this protest, or or not?” Chief Justice Roberts asked Ms. Phelps.

“I don’t know, in the context of a war, if I can give a definitive answer to that,” Ms. Phelps said. “It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated.”

• Ben Conery can be reached at bconery@washingtontimes.com.

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