- The Washington Times - Friday, March 4, 2011

I’m with Samuel A. Alito Jr. - at least in spirit. The associate justice was alone in his dissent in Snyder v. Phelps, in which the U.S. Supreme Court in an 8-1 ruling on Wednesday voided a damage verdict against the Westboro Baptist Church for picketing a Maryland soldier’s funeral. You know the Westboro folks. They’re the media darlings from Topeka, Kan., who have picketed nearly 600 funerals. The Rev. Fred Phelps and his family brandish signs, the most famous of which is “God Hates Fags.” Lately, they’ve been picketing military funerals with signs such as “God Hates the USA/Thank God for 9/11” and “Thank God for Dead Soldiers,” saying they got what they deserve because America tolerates homosexuality.

The media love this 100-member “church” because its members are useful caricatures to vilify Christians who defend marriage and oppose the aims of the homosexual activist movement. It doesn’t matter that pro-family groups repeatedly condemn Mr. Phelps as a hateful nutcase who spews the unbiblical message that homosexuals, unlike the rest of us sinners, are beyond repentance and salvation.

In the Snyder case, Mr. Phelps, two of his daughters and four grandchildren hoisted signs 1,000 feet from a Catholic Church in Westminster, Md., on March 10, 2006, during the funeral of Marine Lance Cpl. Matthew Snyder, who had died when a Humvee had flipped over in Iraq the week before.

Alleging defamation and emotional harm, Snyder’s father, Albert Snyder, sued Mr. Phelps, his daughters and Westboro Baptist Church. A jury awarded him nearly $11 million, which the district court reduced to $5 million. An appeals court overturned the award, and Mr. Snyder appealed to the Supreme Court, which upheld the appeals court’s ruling.

The high court’s opinion, written by Chief Justice John G. Roberts Jr., and a concurrence by Justice Stephen Breyer acknowledged that the Phelps’ crude stunt had caused deep pain to the Snyder family at a profoundly vulnerable time. However, because Mr. Phelps had complied with a Maryland law barring protests within 100 feet of a funeral and had not voiced obscenities, the protest was deemed constitutionally protected speech.

Justice Roberts wrote: “The record makes clear that the applicable legal term - “emotional distress” - fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a ‘special position in terms of First Amendment protection.’ “

In his blistering dissent, Justice Alito rejected that reasoning:

“I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.”

Mr. Phelps had issued a press release before the funeral, so the Snyders knew this hideous protest was occurring while they were in the midst of grieving. Justice Alito cited it as typical of Mr. Phelps’ strategy to milk these events for publicity.

“Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson - proclaiming that she was ‘better off dead’ - their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest. Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman.”

Justice Alito cited an online account posted by Westboro after the protest that crudely assailed Matthew Snyder personally, both of his parents and the Catholic Church. The problem, Justice Roberts wrote in a footnote, was that the plaintiff’s case was based on the protest, which had complied with the law.

The whole thing is awful. One cannot even imagine what the Snyders are still enduring. Everyone with a shred of decency should be outraged, just as in 1977, when the American Nazi Party won the right to parade through Skokie, Ill., where many Holocaust survivors live. (The Nazis ended up marching elsewhere.)

But here’s the silver lining: Wednesday’s ruling may prove to be a powerhouse defense against growing attempts to throttle freedom of speech on the airwaves and on the Internet. It also may defuse the bomb of the federal hate-crimes law as well as the local and state versions that have been springing up like mushrooms. If what Mr. Phelps did to the Snyder family is not actionable, it’s doubtful that courts will succumb to the temptation to levy penalties for “hate speech” in general.

Justice Breyer’s concurring opinion noted that in Harris v. Jones (1977), the Court of Appeals of Maryland found that “the state tort of ‘intentional infliction of emotional distress’ forbids only conduct that produces distress ‘so severe that no reasonable man could be expected to endure it,’ and which itself is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ “

Millions of Americans, especially those who have lost loved ones in the service of their country, must wonder in light of this ruling what could possibly meet that test.

While the decision is important in the long term for freedom of speech, Justice Alito’s dissent is a reminder that sometimes upholding the law seems to defy common sense and decency and that someone has to speak for the injured party. A 9-0 decision might have sent the message that people like the Snyders are merely collateral damage.

This is one of those times in which a spoonful of bile helps the medicine go down. But what’s the Snyder family to do, or the families of all those other slain servicemen and -women whose funerals have been ruined by Mr. Phelps’ bizarre and hateful antics? Can’t something be done?

For starters, the Maryland legislature and other lawmaking bodies should increase the distance from which funerals can be protested from the current 100 feet to, say, 5,000 feet. The Snyder family funeral procession came within 200 to 300 feet of the Phelps bunch, and Mr. Snyder said he saw the tops of the signs.

American patriots can continue to show support for our military and their families in the face of these hideous intrusions and pray that God changes even the coldest of hearts.

As for the Phelpses, it’s likely that they eventually would fade away if the media would stop giving them the coverage they crave. Who was that Florida pastor, again, who threatened to burn the Koran?

The court has gotten this right for the greater good of free speech, but I would bet America’s heart is with Justice Alito - and the Snyder family.

Robert Knight is a Washington Times columnist and senior fellow for the American Civil Rights Union.

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