Oct. 4 (Bloomberg) -- The U.S. Supreme Court has said that even outrageous speech is entitled to First Amendment protection. That principle is about to be tested.
The justices, who opened their new term today with arguments in two cases, this week will consider reinstating a $5 million award against a Kansas minister who staged a protest at the funeral of a Marine killed in Iraq. Fred W. Phelps Sr. and six relatives carried signs that said God was killing U.S. soldiers to punish the country for accepting homosexuality. One said “God Hates the USA” and others used an anti-gay slur.
Even those who have filed briefs in support of Phelps are condemning his tactics, describing them as “disrespectful,” “repugnant” and “contemptible.” They nonetheless want the court to reject the award to the dead Marine’s father, saying that allowing the judgment would threaten political protesters and commentators of all stripes.
It is “one of these cases that tests our commitment to the First Amendment,” said Stephen R. Shapiro, legal director of the American Civil Liberties Union, which is asking the court to bar the award. “I don’t think the First Amendment permits a jury award based upon a determination of outrageousness or offensiveness.”
For Albert Snyder, who is suing Phelps and two of his daughters for intentional infliction of emotional distress, the case has little to do with speech rights.
‘Pope in Hell’
Snyder’s only son, Lance Corporal Matthew Snyder, was 20 when he died in Iraq’s Anbar Province in 2006. The day before the funeral, Albert Snyder learned that Phelps was planning to turn the service into a spectacle.
On the day of the funeral, the group gathered 1,000 feet away from the Snyder family’s Catholic church in Westminster, Maryland. The demonstrators carried signs that read “Thank God for Dead Soldiers,” “Pope in hell” and “Fag troops.” Albert Snyder says another sign read, “Matt in hell.”
The website of Phelps’s church, the Westboro Baptist Church in Topeka, later featured an “epic” that said Snyder and his ex-wife “taught Matthew to defy his creator” and “raised him for the devil.”
Snyder says he didn’t see the demonstrators that day, only the tops of their signs. Even so, he says the Phelpses made their presence felt, forcing a massive police presence that included a SWAT team and a mobile command center.
“I didn’t think any human being could do the things that they did,” Snyder said in an interview. “They mentally abused and terrorized me at the lowest point of my life.”
Daughter Arguing Case
Phelps’s congregation has 60 to 70 members, 50 of them family members, according to court papers. Phelps will be represented at the Supreme Court by a third daughter, Margie, a Westboro member who wasn’t sued by Snyder but has taken part in other demonstrations.
Margie Phelps said in an interview that military funerals, including Matthew Snyder’s, have become “patriotic pep rallies,” making them legitimate platforms for debate. Phelps and his followers say they have picketed some 600 military funerals.
“This little church went to that public platform to say the right words, which are: ‘They’re dying for your sins. Start obeying God, and they’ll stop dying,’” she said.
As many as 28 church members will be in Washington for the argument, and some will be picketing outside, she said.
The Supreme Court has backed speech it deemed offensive before, perhaps most memorably in a 1989 decision that upheld the rights of protesters who burned the American flag.
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” the majority said in that 5-4 decision.
In a 1988 ruling that will be a key precedent for the Snyder case, the court threw out an award to the Reverend Jerry Falwell over a Hustler magazine parody that said his first sexual encounter took place with his mother in an outhouse. The court said Falwell, who mobilized the religious right by founding the Moral Majority, was fair game for parody because of his status as a public figure.
Like Snyder, Falwell had sued for infliction of emotional distress. Snyder’s lawyers say their case is different because their client is a private figure, not someone who thrust himself into a public debate.
Reid and McConnell
Among those backing Snyder are 42 U.S. senators, led by Democratic Majority Leader Harry Reid of Nevada and Republican Minority Leader Mitch McConnell of Kentucky. They say in court papers that mourners have a right to a private, peaceful memorial service.
Twenty-one news organizations including Bloomberg LP, the parent of Bloomberg News, are joining the ACLU in urging rejection of the award.
The case will be the second argued before the newest justice, Elena Kagan, a former law professor and dean whose academic focus included the First Amendment.
A jury awarded Snyder $10.9 million, an amount later reduced by a trial judge. A federal appeals court in Richmond, Virginia, then threw out the entire award.
The justices’ decision to hear the case hints that they might have questions about that ruling. Having taken the case, they now may find it difficult to allow the award without undermining free-speech principles, says Peter Edelman, a constitutional law professor at Georgetown University’s law school in Washington.
“Maybe at the end of the day, we have to put up with the Phelpses, whether we like it or not,” he said.
The case is Snyder v. Phelps, 09-751.
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