Snyder v. Phelps arguments in U.S. Supreme Court begin

Posted on October 7, 2010


They showed up today with their signs — signs with messages like “Thank God for Dead Soldiers” and “God Hates You.” The controversial slogans were part of what brought the infamous Phelps family to the U.S. Supreme Court, and on the day the family appeared inside the courthouse, those signs were on display in front of the building’s grand steps. More than two hours before the proceedings began, about 10 members of the Westboro Baptist Church — followers and family members of Pastor Fred Phelps — lined the sidewalk along One First Street, demonstrating in front of the highest court in the land, much as they do regularly at military funerals and other public events. They say they are expressing their belief that soldiers’ deaths are part of America’s punishment for its immorality, including tolerance of abortion and homosexuality. They’re often met at those funerals by counter-protesters, and Wednesday morning was no exception.

With temperatures in the 50s, a young man stood wearing only black underwear, sneakers and sunglasses, his lips shivering in the fall chill, waving his own sign: “Fred Phelps wishes he were hot like me!”

“I think it’s important to exercise my First Amendment right to stand out here in my underwear,” explained Sam Garrett, 18, a freshman at George Washington University, who was there with his friend and boyfriend of one month.

Even with their attention-getting signs, the dueling picketers did not get out of control — no shouting, no chanting. Garrett posed for photos; demonstrators in both camps easily chatted with the press. But the outrageous activity on both sides was perhaps the perfect backdrop to a potentially groundbreaking legal decision about free speech. Inside, the nine Supreme Court Justices heard the oral arguments for Snyder v. Phelps, a difficult and highly charged case stemming from a Phelps/Westboro protest at the March 2006 funeral of Lance Cpl. Matthew Snyder in Westminster, Md. Cpl. Snyder died in Iraq and was not gay, yet Phelps and some of his family members showed up to protest with their signs. They did not violate any local ordinances and stayed a certain distance away. Albert Snyder, Matthew’s father, sued the fundamentalist church for emotional distress, among other things, in the aftermath, raising the question of where to draw the line between free speech and harassment. A jury awarded Snyder $10.9 million in damages, which a judge later reduced to $5 million. But an appeals court overturned the verdict on First Amendment grounds, saying the Phelpses’ speech was protected because it wasn’t based in fact and was about issues of public concern. A surprise spectator created a bit of a buzz before the argument began — retired Justice Sandra Day O’Connor was spotted; she was there with some of the alumni from the law school named after her, perched quietly to the side of the bench where she used to sit — but a sober atmosphere prevailed once the arguments began.

Even Margie Phelps, daughter of Fred and his lawyer in this case, was soft-spoken and tame before the justices. Behind sleek glasses with thick black rims, she spoke of a “little church” merely wanting to express its views on public issues. (She did sing a hymn with the church group outside afterward — inexplicably to the tune of Ozzy Osbourne’s “Crazy Train.”)

All the justices save for Clarence Thomas, who hasn’t asked a question at oral argument in more than four years, piped into the discussion, often presenting hypothetical situations to the lawyers on both sides, as they tried to derive an opinion about whether or not expressions like the Phelpses’ should be allowed under the law. Justice Samuel Alito offered a scenario where a grandmother raises a boy who becomes a soldier in Iraq and dies there. The grandmother goes alone to visit her grandson’s grave, and on her way home she is waiting for a bus and is harassed by someone who says he is glad her grandson died and wished he were there to see it.

“Now, is that protected by the First Amendment?” Alito asked.

Counselor Phelps tried to put that situation under a different legal umbrella, suggesting that the person harassing the grandmother could be considered to be inciting “fighting words.” Alito steered her away with help from his colleague Justice Antonin Scalia.

“She’s probably not in a position to punch this person in the nose,” Alito clarified.

“And she’s a Quaker, too,” Scalia piped in, prompting laughter in the courtroom.

The lighthearted moment, though, was not reflective of how torn the justices seemed to be over this emotional case. They indicated they were concerned about how far a ruling could go in either direction, silencing too much speech on the one hand or allowing targeted harassment of private people on the other. Justice Ruth Bader Ginsburg, for example, questioned Snyder’s lawyer, Sean Summers, about why his client didn’t get an injunction to bar the picketers from his son’s funeral, since he knew ahead of time that they planned to come, an action that could have prevented Snyder’s emotional distress but not prevented the Phelpses overall from expressing their message. When it was Margie Phelps’ turn to speak to the justices, Ginsburg challenged her as well.

“This is a case about exploiting a private family’s grief, and the question is: Why should the First Amendment tolerate exploiting this Marine’s family?”

After debates between the justices and both lawyers about content and context, Summers explained why he believes the Phelpses’ speech falls out of the bounds of First Amendment protection.

“The private, targeted nature of the speech in our judgment is what makes it unprotected,” he said in response to a question from Justice Stephen Breyer, who was concerned about the fact that the Phelpses’ speech reached Snyder after the funeral in the form of television a broadcast, and a poem of sorts that the Phelpses later published online that named Matthew and said he was “raised for the devil.”

Afterward, Albert Snyder greeted the press, wearing a button that with a picture of his son, Matthew, below the words “My Hero.” He gave a quiet statement, and Summers took questions. When asked what the hardest legal part of this tricky First Amendment case is, he answered, “The toughest question is always drawing a line in the sand.”

Posted in: The Anti News