Snyder v. Phelps: Case of protesting anti-gay messages outside a funeral reaches Supreme Court

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.
Timothy Nieman
Attorney and Counsel of Record for VFW in the Snyder Case
Friday, October 1, 2010; 12:00 PM

The case of Snyder v. Phelps will be argued Oct. 6 at the Supreme Court.

It was initiated by Albert Snyder against members of the Westboro Baptist Church, known for promoting their anti-gay messages. Fundamentalist pastor Fred Phelps and his followers picketed at the funeral of his son, Marine Lance Corporal Matthew Snyder, who was killed in action while serving in Iraq.

Church's protests at military funerals a free-speech test for Supreme Court (Post, Sept. 30)

"The Supreme Court has agreed to hear this case in order to address various free speech issues. The VFW filed its amicus curiae brief in order to carry out its congressional mandate "to preserve and strengthen comradeship among its members; to assist worthy comrades; to perpetuate the memory and history of our dead, and to assist their widows and orphans," said Timothy Nieman, attorney and counsel of record for the VFW in the Snyder case.

Nieman was online Friday, Oct. 1, at Noon ET to discuss the case for Albert Snyder.

Programming Note: For the Fred W. Phelps side of the case, read

Snyder v. Phelps: Case of protesting anti-gay messages outside a funeral reaches Supreme Court.


Timothy Nieman: Good afternoon, my name is Tim Nieman and I am an attorney at Rhoads & Sinon in Harrisburg, PA. I represent the VFW in the Snyder v Phelps case, which is scheduled for argument before the Supreme Court on Wednesday. I look forward to your questions concerning this most interesting and important case.


Washington, D.C.: I think Phelps and his followers are sick people, and their message is disgusting. However, I have a problem with the idea that their actions should be criminalized. How can using the state to punish them for what is admittedly hateful speech be constitutional in line with Supreme Court precedent?

Timothy Nieman: It is universally agreed that the Phelps' speech is cruel and insensitive. However, this is not a case of the government criminalizing speech. Rather, Mr. Snyder filed a civil lawsuit seeking damages for the pain that he suffered as a result of targeted attack of the protesters. We must remember that Mr. Snyder was a private citizen who only asked to peacefully mourn his son. This is not a case of state punishment.


East Liverpool, Ohio: Has Mr. Phelps been questioned or has he offered a comment regarding his feelings should a gay organization protest at a Phelps family funeral, the funeral of any family belonging to the Westboro Baptist church or during any such church service?

Timothy Nieman: I am unaware of Mr. Phelps' opinion on this topic. However, I would suspect that he would find it equally distressing. You only have one opportunity to mourn and bury your loved ones. To have that sacred time interrupted by hateful protests is emotionally distressing to say the least.


Richmond, Va.: Religious freedom does not give me the right to threaten and intimidate others. I and the Phelps clan are free to worship the religion of our respective choices IN OUR HOMES and IN OUR CHURCHES. The Constitution does not allow us to force our religious views on others.

Timothy Nieman: The Constitution does not allow someone to force their religious views on others. We need to remember that the Snyder family was also engaging in a religious expression by trying to peacefully bury their son.


Carytown, Richmond, Va.: What can I do to help honor those fallen soldiers and their families? They died to protect my freedom and if there were anything I could do to thank them for their service and keep the funerals respectful, I'd do it. If I could wrestle Phelps to the ground, I'd do it by golly.

Timothy Nieman: I think that even people who believe that Phelps and the Westboro Baptist Church have a right to protest agree with your sentiment about wanting to wrestle them to the ground.


Austin, Tex.: Could you explain, as best you understand it, what is the rationale of these Westboro people?

Clearly, any decent human being would conclude that military funerals are no place to hold a political protest about anything. But in the case, for instance, of a radical antiwar group protesting at funerals, one could sort of see the logic, however offensive the act might be.

But gays? The last I heard, the military wasn't the most gay-friendly environment anyway.

What are they thinking?

Timothy Nieman: Clearly they were thinking (and rightfully so) that they can get maximum media exposure by protesting at military funerals. By virtue of the fact that we are talking about this today proves this point. I agree with your sentiments. Matthew Snyder was a private citizen who laid down his life in defense of the United States. His father was a private citizen who had no ability to change the military's policy on don't ask, don't tell. Yet, this group targeted him at the most vulnerable time of his life.


Southern Maryland: First Amendment issues aside, Phelps and his followers are causing much heartache for the families of fallen soldiers. I had hoped that they would go away if the media became disinterested, since they seem to crave attention. Hypothetically speaking, if funeral homes or churches arranged for private security guards to keep the Phelps group away from the funerals, would they be on solid legal ground?

Timothy Nieman: Yes, funeral homes could bar protesters from their own private property. The problem arises when the protesters are on public property adjacent to the funeral home, such as a sidewalk or street. That is really what this case is about. The Supreme Court has developed what is known as the captive audience doctrine, which protects private citizens from intrusive speech. For example, the Court has ruled that picketers can be barred from protesting outside a private residence on the theory that you are "captive" in your home and cannot avoid the speech because there is no further place of refuge. The same goes for hospitals. Here, in order to mourn the loss of his son, Mr. Snyder had to attend the funeral service. He was a captive audience and, in my opinion, the Court should find in Mr. Snyder's favor on this basis.


Richmond, Va.: Please thank the Snyders for their son's service to our nation. He died protecting my freedom.

Timothy Nieman: Thank you and I will pass on your condolences. We are all proud of Matthew's service and sacrifice.


Van Ness, D.C.: Who is defending Westboro? And who is paying those legal bills? Has the ACLU taken a position on this matter?

Timothy Nieman: Westboro is represented by one of Mr. Phelps' daughters. The ACLU has filed a brief in support of Westboro, as have a number of other organizations. In addition to the VFW (who I represent), a number of other organizations and government officials have filed briefs in support of the Snyders.


Washington, D.C.: There used to be a group organized by a friend of Matthew Shepard that would stand in a row between the Phelpses and the funeral wearing giant angel wings to effectively block the visual spectacle of the Phelpes from those attending the funeral. Is this group still active?

Timothy Nieman: I am not sure if the group that you refer to is still active. However, there is a group of veterans who do counter-protest in these situations.


Fairfax, Va.: Mr. Nieman --

The Supreme Court rulings in this area seem to have consistently included the implicit idea that no one is forced to endure protected scurrilous protests, i.e., if you don't like to see Nazis march in Skokie, don't go to watch their parade. In this instance though, staying away or otherwise not participating is not an option. Additionally it appears that constitutionally sanctioned limits may be placed on the times and places of picketing, demonstrating, etc. Do you think this can apply here, or will freedom of religion ultimately trump everything?

Timothy Nieman: I agree with your sentiment. As I mentioned above, a mourning family member who attends the private funeral of a loved one is captive and cannot avoid the speech. In my opinion the Supreme Court should apply the captive audience doctrine to funeral protests.


We can't yell FIRE in a crowded theater: And we should not be able to disturb a private funeral. That in NO way limits my freedom of speech nor my freedom of religion. It protects those mourning families' privacy.

Timothy Nieman: There are a number of limits on what and how we can speak or express our views. These is a perfect example of just such a case.


D.C.: I'm supportive of Phelp's right to free speech, but I'm not entirely convinced this is a free speech issue. Wasn't the lawsuit a civil one? It seems to me that free speech would deal with criminal law, and would imply government action.

Free speech isn't consequence-free. Civil damages seem a reasonable consequence of such vile speech during such an emotionally sensitive time.

My condolences to the Snyder family.

Timothy Nieman: Yes, this was a civil lawsuit, however there is a free speech component to the case. Phelps argues that civil damages can chill speech. However, throughout our history parties injured by speech have successfully brought lawsuits to vindicate their reputations and recover damages for their injuries and suffering.


NE Ohio: Can you discuss the nature and or amount of damage sought by Mr. Snyder?

Timothy Nieman: The jury awarded Mr. Snyder $2.9 million in damages and $8 million in punitive damages for his emotional distress and the invasion of his privacy. The court then reduced the verdict to $5.1 million. When the appeals court overturned the verdict, it unfortunately ordered Mr. Snyder to pay Phelps' attorneys fees.


1st Amendment: As loathsome as the Westboro Baptist church is, aren't they within their first amendment rights? Those same rights that soldiers are fighting for? Is there any argument that, while they have the right to protest, their actual message constitutes hate speech against gays and is thereby unprotected?

Timothy Nieman: The hate speech angle of this case is not before the Court. And yes, Matthew Snyder and all our soldiers are fighting to protect our rights, including the right of free speech. However, as George Washington cautioned, "The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional as to how they perceive veterans of earlier wars were treated and appreciated by this Country."


Washington, D.C.: Generally I'm not a fan of lawyers, but I commend you on your hard work on a difficult case. All soldiers, gay, straight, black, white, men, women, are heroes, as are their families who support them. I can think of few people who deserve our respect more than the grieving family of a fallen soldier, and I can think of few people who I despise as much as those that look to capitalize on such an event. Keep up the good fight.

Timothy Nieman: Thank you, however, the real thanks goes to the men and women who have and continue to serve in our armed forces.


Maryland: Could there not be a case for libel. WBC waves signs saying "God Hates Fags." Anybody passing would take the implication that the deceased was gay, which apparently is not the case.

Timothy Nieman: A defamation claim was included in the original claim. The trial court did not allow that claim to go forward because there was no loss of reputation.


Santa Barbara, Calif.: Mr. Nieman,

Forgive me for saying this, but your case seems to hinge on what is considered decent and moral, not necessarily what is legal and protected under the Constitution. Your last quote about Washington just seems to reinforce this impression.

Timothy Nieman: There is no doubt that decency is at issue in this case. In my experience I have never seen an issue that has brought so many people together from differing political, religious and social viewpoints. Even Senators Harry Reid and Mitch McConnell have joined forces in support of Mr. Snyder and in opposition to Westboro. Having said that, in my opinion, the captive audience doctrine protects all families from funeral protests. The decision in this case should be moral, decent and constitutional.


Washington, D.C.: What's your prediction? How will the Supreme Court vote this one out?

Timothy Nieman: One of the first things I learned as a lawyer is that you cannot predict how a judge or jury will decide a particular case. In my opinion I think the Court will decide this case in favor of Mr. Snyder.


Timothy Nieman: Thank you for the thoughtful questions and I apologize for not being able to answer them all. I would also like to thank my colleagues Dean Dusinberre and Amanda Lavis for their work on the brief that we filed on behalf of the VFW. If you would like to read a copy of the brief, it can be found at The Court is scheduled to hear the case this coming Wednesday; it should be an extremely interesting event. Thanks again.

_______________________ Rhoads and Sinon Files U.S. Supreme Court Brief on Behalf of VFW in Snyder v. Phelps


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