Court weighs free speech vs. privacy at funerals

By Robert Barnes
Washington Post Staff Writer
Thursday, October 7, 2010

The Supreme Court seemed to have trouble putting aside the ugliness of the message to focus on the rights of the messenger Wednesday, as justices tried to balance free speech against the privacy owed a grieving family burying a son.

With protesters on the marble plaza outside a packed courtroom, the justices considered the case of the Westboro Baptist Church of Topeka, Kan., whose anti-gay demonstrations have targeted the military funerals of troops killed in Iraq and Afghanistan.

The church - which is made up almost entirely of the family members of its founder, the Rev. Fred W. Phelps - contends that the deaths are God's revenge for the country's tolerance of homosexuality. Albert Snyder - the fatherof Matthew Snyder, 20, a Marine whose funeral was one of hundreds the group picketed - sued.

Most First Amendment experts said before the argument that they expected the court to make a straightforward, if distasteful, ruling that even vile public speech is protected by the First Amendment. If that is what the justices decide, though, it appeared from the oral arguments that it would not come without some angst.

Sean E. Summers, who represents Snyder, set the tone with his first words to the justices.

"We're talking about a funeral," he said. "If context is ever going to matter, it has to matter in the context of a funeral. Mr. Snyder simply wanted to bury his son in a private, dignified manner."

Summers faced tough questioning from the justices about whether the funeral was actually disrupted by the protest, whether public speech could ever be curtailed because of the objections of the listener and, from Justice Ruth Bader Ginsburg, how a group could be sued for damages over actions that were lawful.

But even Ginsburg, the justice who was most skeptical of Summers' arguments, noted the unpleasantness of the group's actions.

"This is a case about exploiting a private family's grief and the question is: Why should the First Amendment tolerate exploiting this bereaved family when you have so many other forums for . . . getting across your message?" Ginsburg asked Margie J. Phelps, the founder's daughter, who was representing family members.

Phelps replied: "When I hear the language 'exploiting the bereavement,' I look for: What is the principle of law that comes from this court?"

She said that the court has set limits on what public places a person can visit to "deliver words as part of a public debate," and that as long as those are respected, "this notion of exploiting, it has no definition in a principle of law that would guide people as to when they could or could not."

Nearly all of the justices referred to the group's noxious practices; a sampling of the signs carried at Snyder's March 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."

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