Funeral protest tests limits of free speech

WASHINGTON – Supreme Court justices seemed both troubled and divided Wednesday as they questioned whether a small Kansas church could be punished for mounting a protest that many found contemptible outside a military funeral.

The high court didn’t clearly tip its hand during the hourlong oral arguments in the case pitting the Westboro Baptist Church against a grieving Pennsylvania father. Several justices did, however, hint that the 2006 funeral protest was lawful even if it was obnoxious.

“Didn’t they stand where the police told them to?” Justice Ruth Bader Ginsburg said at one point, adding that the protest “was with the knowledge and permission of the police.”

To underscore the case’s difficulty, however, Ginsburg later questioned whether the First Amendment should “tolerate” what she termed “exploiting a private person’s grief” for the purpose of getting attention.

The most anticipated free-speech case of the year, Snyder v. Westboro Baptist Church centers on a March 2006 protest by seven Westboro members outside a Roman Catholic church in Maryland. Inside the church, Albert Snyder was holding a funeral service for his son, Matthew, a 20-year-old Marine lance corporal who was serving in Iraq’s Anbar province when he was killed in a vehicle accident.

“Mr. Snyder simply wanted to bury his son in a private, dignified manner,” attorney Sean E. Summers of York, Pa., told the court.

During the Snyder funeral service and roughly 1,000 feet from the church, Westboro Baptist protesters carried signs conveying such messages as “You are going to Hell,” “God hates you” and “Thank God for dead soldiers.” One sign, according to a legal brief, included “a picture of two males performing anal sexual intercourse.”

Church members, several dozen of whom were present outside the court Wednesday, believe that God is punishing the U.S. for tolerating homosexuality.

Albert Snyder didn’t see the protest signs until he saw a television news show that night. He sued in a Maryland court, claiming intentional infliction of emotional distress, and eventually won a $5 million award. An appellate court threw out the award.

“The words that were at issue in this case were (from) people from a church delivering a religious viewpoint,” Topeka, Kan., attorney and Westboro Church member Margie J. Phelps told the court.

Phelps further argued that Matthew’s father, Albert, had thrust himself onto the stage by going “to the public airwaves” with comments about the Iraq war after his son’s death.

Justices Wednesday kept circling back to the question of whether the Snyder funeral was a public or private event, and whether that matters for deciding the case.

“If he simply buries his son, is he a public figure open to this protest or not?” Chief Justice John Roberts asked, receiving an equivocal answer.

The question is crucial because speech about public persons and public affairs typically wins the greatest protection from courts.

“What case stands for the proposition that public speech or speech on a public matter directed toward a private person should be treated differently depending upon the recipient of the speech?” Justice Sonia Sotomayor asked, also without getting a clear answer.

Largely in response to the notoriety given the Westboro church protests, many states, including Washington and Idaho, have enacted laws restricting funeral protests, and 48 states joined in an amicus brief supporting Snyder. Some of these laws could be called into question if the Supreme Court sides with the Westboro church.

The court will rule before its term ends in June.