Few recent confrontations have stirred as much emotion and debate as the spate of funeral protests conducted at funerals for U.S. soldiers killed in the wars in Iraq and Afghanistan. On Monday, 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.
Members 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 better." 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 4th U.S. Circuit Court of Appeals reversed, on First Amendment grounds.
Two judges of the 4th Circuit panel, Robert King and Allyson 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 the battlefield."
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.
This article first appeared on The BLT: The Blog of Legal Times.