FREE SPEECH — "Few recent confrontations have stirred as much emotion and debate as
the spate of protests conducted at funerals for U.S. soldiers
killed in the wars in Iraq and Afghanistan. Today, the Supreme Court
agreed to take up one of the cases stemming from those protests, a
hot-button First Amendment dispute that will be argued in the fall," reports Tony Mauro in the Blog of LegalTimes.
of the Topeka, Kan., Westboro Baptist Church, seeking to spread the
word that God is punishing America for its acceptance of homosexuality,
have shown up at funerals with anti-gay and anti-war protest signs
carrying messages such as "Thank God for Dead Soldiers," and "God Hates
You." The protests have triggered lawsuits and legislation nationwide,
posing a dilemma for those seeking to stifle the protests without
suppressing First Amendment rights.
"However abhorrent may have
been the message … the scope of constitutional freedom or expression
may not turn on the acceptability of that message," wrote J. Joshua
Wheeler of the Thomas Jefferson Center for the Protection of Free
Expression in a brief filed at an earlier stage of the case now before
the Court, Snyder v. Phelps.
In the case, Kansas
church members led by Fred Phelps traveled to the Westminster, Md.,
funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq in
2006. they displayed their usual signs and caused disruption and
emotional pain for Snyder's family, according to the family's brief.
"Phelps' activities added insult and injury during a time of grief and
mourning," wrote Sean Summers of the York, Pa., firm Barley Snyder in
the petition to the high court, filed on behalf of Snyder's surviving
father, Albert. "Matthew deserved better. A civilized society deserved
A jury awarded the Snyder family $10 million in compensatory
and punitive damages for intentional infliction of emotional distress,
an amount later reduced to $5 million. The U.S. Court of Appeals for
the 4th Circuit reversed, on First Amendment grounds.
of the 4thCircuit panel, Robert King and Allson Duncan, found that,
despite the "distasteful and repugnant nature of the protests, the
speech was constitutionally protected. The third judge, Dennis Shedd,
agreed the judgment against Phelps should be reversed, but on grounds
other than the First Amendment.
Phelps' brief in opposition to
granting Supreme Court review argued that the protesters' speech was
about public matters and should be protected. "Given the magnitude and
gravity of the problems facing this once great nation," said Topeka
lawyer Margie Phelps, "nothing could be more important at this hour
than the question of how God is dealing with this nation, especially on
As framed by lawyers for Snyder, the issues to be resolved by the high court will be whether the 1988 case of Hustler v. Falwell,
which limited the use of the "emotional distress" tort, applies in
cases like Snyder's, and whether freedom of speech trumps freedom of
religion and peaceful assembly.