By Robert Barnes
Washington Post Staff Writer
Thursday, October 7, 2010; A1
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."
Summers acknowledged that the protesters were at least hundreds of feet from the church's entrance - Phelps said they were 1,000 feet away, "out of sight, out of sound." Summers agreed that Snyder could not read their signs and said he saw them later on television at the family wake.
Snyder also discovered online a missive that another church member, Shirley Phelps-Roper, wrote for the church's Web site several weeks later. It said 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. Matthew Snyder was not gay and the Phelpses say their message is not about the dead Marine but is meant as a warning to the living.
Snyder sued Phelps and argued at trial that the Phelpses had invaded his privacy, caused emotional distress, and violated his rights to free exercise of religion and peaceful assembly.
A Baltimore 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 the rhetoric used was offensive, it was protected as speech concerning issues in the national debate.
Justice Sonia Sotomayor asked whether court precedents would allow that "speech on a public matter should be treated differently depending on the recipient of the speech" - whether it made a difference if Snyder was a public personality rather than a private figure. But Summers's list of cases did not seem to satisfy her.
Justices Antonin Scalia and Stephen G. Breyer focused on Phelps-Roper's Web site message, which condemned Albert Snyder for, in her words, raising his son "for the devil."
Breyer wondered whether there were a "rule" the court could come up with to establish what kind of Internet content would be allowed if it were to cause intentional infliction of emotional distress.
"Maybe this is impossible, this task," he later concluded.
Justice Samuel A. Alito Jr. suggested that the writings on the Web site specific to Snyder showed that the church was targeting him, not simply engaging in public speech.
When it was her turn at the lectern, Phelps faced a host of hypotheticals. Justice Elena Kagan wondered whether protesters could target a wounded service member, continually protesting at his home or church, because of his role in the war.
Alito suggested another: whether someone could engage a grandmother visiting the grave of her grandson killed in the war, confronting her with "vile" descriptions of his death and applauding it.
Phelps eventually answered that there might be very limited occasions when actions might justify a lawsuit and said restrictions against use of "fighting words" or stalking might also come into play.
Chief Justice John G. Roberts Jr. seemed troubled by the choice of Snyder's funeral as the place for a protest.
"Does it make a difference, which seems to me to be the case here, that Mr. Snyder was selected not because of who he was, but because it was a way to get maximum publicity for your client's particular message?" he asked.
Phelps said that that was not true, but that holding protests where they will receive the most attention is not forbidden.
She also resisted the notion that Snyder was a private figure, saying he had put himself in the public arena by questioning the war in interviews after his son's death.
"A little church, where the servants of God are found, say, 'We have an answer to your question . . . and our answer is: You have got to stop sinning if you want this trauma to stop happening,' " Phelps said.
It was one of the few times of the day when she sounded as though she were evangelizing rather than lawyering, and Roberts quickly cut her off.
The case is Snyder v. Phelps .