By Robert Barnes
Washington Post Staff Writer
Tuesday, March 9, 2010; A03
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.
In the vaccine case, the court will examine a 1986 federal law that was intended to make sure the nation has a stable vaccine supply by shielding drugmakers from most lawsuits. It established a special vaccine court to examine claims.
Robalee and Russell Bruesewitz say their infant daughter, now a teenager, was harmed by Wyeth's vaccine for diphtheria, tetanus and pertussis (whooping cough). They claim the vaccine from Wyeth, which has since been purchased by Pfizer, was faulty and that the federal law was never intended to shield drugmakers from every claim.
The 3rd U.S. Circuit Court of Appeals in Philadelphia disagreed. Only the Georgia Supreme Court has ruled that families can sue in a vaccine case. Even though it won in the federal appeals court, the drugmaker urged the Supreme Court to take the case to clear up the discrepancy.
The case is Bruesewitz v. Wyeth.
The justices also accepted an appeal from NASA about the way the space agency performs background investigations on independent contractors.
The case arises from checks the government attempted on workers for the Jet Propulsion Laboratory near Pasadena, Calif., which included questions about whether the potential workers had sought treatment for a drug problem in the past year and other adverse information. The U.S. Court of Appeals for the 9th Circuit blocked the background checks, saying they could harm the constitutional rights of the workers. It said the questions were not narrowly tailored to fit legitimate government interests.
The government asked the court to review the appeals court decision.
"The ramifications of the decision below are potentially dramatic," the government's petition said. "The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background check process the government has used for federal civil service employees for over 50 years."
The case is NASA v. Nelson.