Supreme Court to rule on anti-gay protests at military funerals

By Robert Barnes
Washington Post Staff Writer
Tuesday, March 9, 2010

The Supreme Court will review whether anti-gay protests at funerals of American soldiers are protected by the First Amendment, taking up the appeal of a Maryland man who won and then had reversed a $10 million verdict against the small Kansas church that conducts the demonstrations.

The case will seek to balance a group's free speech rights with the rights of private individuals to be protected from unwanted demonstrations and defamatory remarks. A federal appeals court said the church's protests were "utterly distasteful" but protected because they were related to "matters of public concern."

The case was one of three the court announced it would be considering in its new term that begins in October. It will review restrictions on those who want to sue drugmakers with claims that their vaccines are faulty, and it will examine whether the questions that the federal government asks about potential employees violate their constitutional rights.

The funeral protest case is brought by a Maryland father whose son's 2006 funeral in Westminster was picketed by members of the Westboro Baptist Church in Topeka, Kan. Westboro pastor Fred W. Phelps Sr. contends that the deaths of American soldiers are punishment for the nation's tolerance of homosexuality and has organized nearly 43,000 protests since 1991, according to the church's Web site.

Phelps and members of his church -- which consists primarily of him and members of his extended family -- say they were not targeting Marine Lance Cpl. Matthew Snyder, who was killed in action in Iraq. But they say they have learned that demonstrating at funerals gets the most public and media attention for their message that the nation's tolerance for gays has resulted in punishment, especially the deaths of American soldiers.

The signs they carried at Snyder's funeral at St. John's Catholic Church, made in the Kansas church's on-site sign shop, included, "God Hates the USA/Thank God for 9/11," "Semper Fi Fags," "Thank God for Dead Soldiers" and "Priests Rape Boys."

After emotional testimony from Albert Snyder that he had "one chance to bury my son, and they took the dignity away from it," a Baltimore jury awarded Snyder more than $10 million in damages. A district judge cut the amount in half, and then the U.S. Court of Appeals for the 4th Circuit in Richmond threw out the verdict and award.

The three-judge panel said the signs could not be reasonably understood to be referring directly to Snyder and his son. And the court said that, as offensive as it found Phelps's rhetoric, it was protected as speech concerning issues in the national debate.

"Notwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the defendants' signs . . . are constitutionally protected," the court said, adding that the signs contained "imaginative and hyperbolic rhetoric intended to spark debate about issues with which the defendants are concerned."

Snyder's petition to the Supreme Court said the appeals court decision "afforded more First Amendment protection to speech that is outrageous." It urged the justices to accept the case to determine what recourse private individuals -- as opposed to public figures -- have against the actions of other private individuals who would disrupt a private, religious funeral.

Phelps says that his group informed law enforcement about its plans to picket and obeyed all commands about keeping its distance from the funeral. Because of the group's protests, approximately 40 states and the federal government have enacted laws restricting funeral demonstrations, and they are not at issue in the litigation.

The case is Snyder v. Phelps.

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