High Court: Justices to consider 'funeral protests' in free-speech case

The Supreme Court takes up the battle over how the Westboro Baptist Church spreads their message that the nation's tolerance of homosexuality has drawn God's condemnation.
Washington Post Staff Writer
Monday, May 31, 2010

Albert Snyder, an industrial equipment salesman from York, Pa., says he was once a quiet guy who had no taste for the limelight. Now he has a Web site and interviews scheduled back to back. The most important person in the Senate is rallying support for him, and 48 states and the District of Columbia have come to his aid.

Snyder and his late son, Marine Lance Cpl. Matthew Snyder, killed in Iraq, have become the public faces of more than 200 families that have seen funerals of loved ones picketed by members of a tiny church who say the deaths of U.S. soldiers are God's retribution for the nation's tolerance of homosexuality.

The collision of privacy rights and the Constitution's protection of free speech will be heard by the Supreme Court in the fall. Snyder's lawyer, Sean Summers, recently filed his brief to the court, and the fortuitous deadline for others to support Snyder is the day after Memorial Day.

Senate Majority Leader Harry M. Reid (D-Nev.) for once found common ground with Minority Leader Mitch McConnell (R-Ky.) on the issue. Reid held a news conference with Snyder Friday to say 42 members of the Senate had signed on to an amicus brief to condemn the actions of Westboro Baptist Church in Topeka, Kan., and its founding pastor, Fred W. Phelps Sr.

"Respondents were and are free to convey their repugnant message in virtually any public manner they choose," the senators said in a brief written by former Clinton administration counsel Walter E. Dellinger III. "But they were not free to hijack petitioners' private funeral as a vehicle for expression of their own hate."

Likewise, there has been a rush of state attorneys general to sign on to an efforts led by Kansas Attorney General Steve Six to argue that there is no protection for what they say was targeted and harassing speech aimed at Snyder. More than 40 states have laws restricting funeral protests, which are not at issue in the case.

Despite the political firepower, First Amendment specialists think Albert Snyder has a difficult case to prove to a court that has been particularly outspoken on government attempts to regulate speech and has accepted two privacy cases for the term that begins in the fall.

George Washington University law professor Daniel J. Solove, the author of "Understanding Privacy," said he finds it "perplexing" that the justices took the case. The message of Phelps and his followers is "stupid and obnoxious," Solove said, but seems to fit squarely into the kind of unpopular speech that the Constitution protects.

The church maintains that its protests are not aimed at the dead -- there was no particular reason to select Matthew Snyder's funeral for picketing -- but at the actions of the living.

A sampling of the signs carried at Snyder's 2006 funeral at St. John's Catholic Church in Westminster, Md., included "God Hates the USA/Thank God for 9/11," "Semper Fi Fags," "Thank God for Dead Soldiers" and "Priests Rape Boys." The demonstrators abided by the law and stayed away from the funeral itself.

Albert Snyder sued Phelps, and Snyder argued at trial that the demonstration invaded his privacy, caused emotional distress and violated his rights to free exercise of religion and peaceful assembly. He said a treatise posted on the church's Web site specifically mentioned Matthew and his family.

A jury awarded Snyder more than $10 million, which was cut in half by the judge and then overturned by the U.S. Court of Appeals for the 4th Circuit in Richmond. A three-judge panel said that although Phelps's rhetoric was offensive, 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. It added that the signs contained "imaginative and hyperbolic rhetoric intended to spark debate about issues with which the defendants are concerned."

Virginia and Maine are the two states not supporting Snyder. Brian Gottstein, a spokesman for Virginia Attorney General Ken Cuccinelli (R), said that the state has a law against funeral protests and that his office fears the precedent that Snyder's case could set.

"We do not think that regulation of speech through vague common-law torts, like intentional infliction of emotional distress, strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals," Gottstein said.

Virginia's decision was disappointing for Snyder, as was news he received from the appeals court this month: It said he owes the church $16,500 in legal fees.

Snyder said he was only vaguely aware of the protests at military funerals until the protest came to him. He still gets emotional recalling that day.

"All we wanted was a private funeral for my son," he said. "They turned it into a three-ring circus."

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