The fringes of freedom

By Robert Barnes
Washington Post Staff Writer
Friday, October 1, 2010; A13

TOPEKA, KAN. - A filmmaker several years ago tracked Shirley Phelps-Roper and her family members as they went about praising God for killing U.S. soldiers and picketing their funerals - their way of putting the nation on notice about the Almighty's wrath.

He called the documentary "The Most Hated Family in America," and Phelps-Roper had only one real regret.

"If he had just called it, 'The Most Hated Family in the World,' " she said. In the last hours of the last days, she explained, Jesus said his chosen will be "hated by all men."

Phelps-Roper, along with her father, the Rev. Fred W. Phelps, and other family members who make up Westboro Baptist Church, may yet get their wish.

The family's inflammatory picketing - "Thank God for dead soldiers" is a favorite sign - has prompted more than 40 state legislatures and Congress to pass laws. Next week, the Supreme Court takes up the battle over how the Phelpses spread their message: that the nation's tolerance of homosexuality has drawn God's condemnation.

It creates an only-in-America quandary: whether the freedom of speech is so powerfully woven into the nation's fabric that it protects one family's right to vile and hurtful protest at the very moment of another family's most profound grief.

Albert Snyder, whose son Matthew's 2006 funeral in a little town in northern Maryland is at the center of the case, says that right cannot possibly exist.

"It is an insult to every American who has died for the freedom of speech," Snyder said in a recent interview. "No one in the history of the nation has ever protested like this. Don't tell me that my son died for that."

Snyder's was one of about 200 families who say the funerals of their loved ones were disrupted by Westboro's protests. A Baltimore jury ruled that Westboro had to pay Snyder $10 million for invasion of privacy and intentional infliction of emotional distress.

The judge cut the amount in half, and then a unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond overturned the judgment.

The judges called the Phelps protest "distasteful and repugnant" but protected by the Constitution as "imaginative and hyperbolic rhetoric."

Margie J. Phelps, another daughter and a lawyer who will argue the church's side before the Supreme Court, called the case "the ultimate litmus test" for America's belief in free speech.

"It has survived pornography. It survived burning flags. It survived every kind of filth on the Internet. It survived what people thought was seditious talk," she said recently, on a break between a protest at a Catholic church and before worship service at Westboro. "The question our case presents is: Can it survive a few modest words from a little church - less than 70 souls, in the middle of the nation - about your sins?"

But Snyder's attorney, Sean Summers, said the appeals court was wrong to consider only the First Amendment rights of the church members.

"The Phelpses' freedom of speech should have ended where it conflicted with Mr. Snyder's freedom to participate in his son's funeral, which was intended to be a solemn religious gathering," Summers told the court in his brief.

Snyder put it another way.

"I had one chance to bury my son in peace," he said, "and they took it away from me."

The 2006 protest

On March 10, 2006, seven members of the Phelps family picketed 20-year-old Marine Lance Cpl. Matthew Snyder's funeral at St. John's Catholic Church in the town of Westminster. Snyder was not gay; the Phelpses say their message is not about the individual soldier, but the nation.

More than a thousand people turned out, both to support the Snyders and protest Westboro. The funeral procession was rerouted so as not to pass the Phelpses. The parochial school across the street papered over its windows to shield students from signs such as "Semper Fags" and an illustration of two stick figures engaging in anal sex. The media were out in force. A SWAT team was called.

"They turned my son's funeral into a circus," Snyder said.

Fred Phelps asked: "If we're saying God is mad at the country and he's killing kids on account of it, then what's more appropriate as a forum to preach than at the funeral of one of these dead soldiers that God has just killed?"

Phelps, who once practiced law but now is disbarred, is one of 16 in the extended family who have law degrees.

The family obeyed law enforcement directives and all laws.

"We don't believe in that civil disobedience stuff," Margie Phelps said. "It's not scriptural, so we don't do it."

A few weeks later, Phelps-Roper wrote on the Westboro church's Web site that Snyder's membership in the Catholic Church and his divorce from Matthew's mother had made his son a prime target for God's punishment.

Snyder said the stress from the events made him physically sick, worsened his diabetes and deepened his depression. He is supported by the attorneys general of 48 states and the District of Columbia. He has also drawn backing from the majority and minority leaders of the Senate, along with a bipartisan mix of 40 senators.

Their brief, written by longtime Supreme Court practitioner Walter Dellinger, argues that the Phelpses have a right to free speech but not to "hijack [a] private funeral as a vehicle for expression of their own hate." Such willful attempts to insult and invade privacy are not constitutionally protected, they say.

But the Phelpses are supported by a broad coalition of media organizations and First Amendment scholars. They say ruling against the church would undermine the core protections of the First Amendment and open speakers to liability when the listener disagrees with the message.

The same groups are quick to disassociate themselves from the "vile" and "repulsive" words of Westboro.

"This case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant," the Reporters Committee for Freedom of the Press said in its brief.

Roy T. Englert Jr., a frequent Supreme Court practitioner not involved in the case, said there are really only two possibilities for the court.

"Either the court is going to make some new First Amendment law that says funerals are different, which certainly would be a popular position," Englert said. "Or the court is going to say, 'Let's take the most obnoxious speech in America today, and let's reaffirm that even obnoxious speech is protected.' "

Phelps: God 'trusts us'

At the Westboro complex, the emphasis is on what members believe God is saying.

"Our Father has arranged all this bully-pulpit activity because he trusts us, beloved," Fred Phelps began a recent sermon. Now 80, he preaches sitting down. A "Fag Media Shame" banner hangs nearby, perhaps hung for a visiting reporter.

In the pews are his family members. The door to the church is locked to outsiders. Only one family member not related by blood is included. The women cover their heads with scarves.

Margie Phelps, 54, described the family as "subculture in this nation" but hardly apart from society. Their children attend public schools. The song parodies they put on their Web site and sing at their protests are set to the tunes of Lady Gaga and Gorillaz.

They all live close to one another in houses with large rear additions, some sharing a common back yard with a swimming pool and basketball court. The many children in the extended family are part of the protests, which unfold with almost military precision.

Almost nothing outrages those who oppose the Phelpses so much as the sight of their young children emerging from a line of Honda Odysseys and pickup trucks carrying protest signs denouncing homosexuals and Jews. When they reach the age of maturity, Phelps-Roper said, they either stay in the church or "just go."

She has a daughter-in-law and grandchild she's never met. Three of her siblings left the family, and one changed her name.

The Phelpses can find a link to almost any horrible event - Hurricane Katrina, an earthquake, the murders of Amish schoolchildren - to a group they contend God hates. On their Web site, they say the idea that God loves everyone is the "greatest lie ever told."

Snyder said that "they are not human beings."

Phelps-Roper said only a "sucker" would have sympathy for Snyder and the loss of his son.

Fred Phelps said the court's decision will be unanimous.

"The speech is protected," he said. "They're not going to give up the whole body of American law over one teared-up moron."

On their Web site, the Phelpses offer running totals on the number of Americans killed in Iraq and Afghanistan and the millions of gallons of oil God dumped into the Gulf of Mexico.

Another category is "nanoseconds of sleep that WBC members lose over your opinions and feeeeellllliiiiiings."

The answer is zero.

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