Archive for Wednesday, October 6, 2010

U.S. Supreme Court ponders free speech vs. father’s pain in Phelps funeral protest case

October 6, 2010, 8:19 a.m. Updated October 6, 2010, 4:47 p.m.


— Supreme Court justices, in a rare public display of sympathy, strongly suggested Wednesday they would like to rule for a dead Marine's father against fundamentalist church members who picketed his son's funeral — but aren't sure they can.

Kansas attorney general in D.C. for Phelps Supreme Court case

Steve Six is in the capital for the case, and he's on the side of those who think Westboro Baptist Church is invading privacy when it pickets funerals. Enlarge video

Left unresolved after an hourlong argument that explored the limits of the First Amendment: Does the father's emotional pain trump the protesters' free speech rights?

The difficulty of the constitutional issue was palpable in the courtroom as the justices weighed the case of Albert Snyder. His son died in Iraq in 2006, and members of a family-dominated church in Topeka, Kan., protested at the funeral to express their view that U.S. deaths in Afghanistan and Iraq are God's punishment for American immorality and tolerance of homosexuality and abortion.

Margie Phelps, arguing the case for her family's Westboro Baptist Church, said the message of the protests at military funerals and elsewhere is, "Nation, hear this little church. If you want them to stop dying, stop sinning."

Phelps' argument did not endear her to the justices, who asked repeatedly whether Snyder had any recourse.

"This is a case about exploiting a private family's grief," said Justice Ruth Bader Ginsburg, who questioned whether the First Amendment should protect the church members.

Could a wounded soldier sue someone who demonstrates "outside the person's home, the person's workplace, outside the person's church ... saying these kinds of things: 'You are a war criminal,' whatever these signs say or worse?" Justice Elena Kagan asked.

Justice Samuel Alito wanted to know if the Constitution also would shield someone who delivers a mean-spirited account of a soldier's death to the serviceman's grandmother while she's leaving her grandson's grave. "She's waiting to take a bus back home," Alito imagined and someone approaches to talk about the roadside bomb that killed the soldier. "'Let me describe it for you, and I am so happy that this happened. I only wish I were there. I only wish that I could have taken pictures of it.' And on and on. Now, is that protected by the First Amendment?"

Snyder, of York, Pa., is asking the court to reinstate a $5 million verdict against the Westboro members who held signs outside the Westminster, Md., funeral of Lance Cpl. Matthew Snyder, including ones that read "Thank God for Dead Soldiers," ''You're Going to Hell" and "God Hates the USA." The 20-year-old Marine was killed in a Humvee accident in 2006.

The church also posted a poem on its website that assailed Snyder and his ex-wife for the way they brought up Matthew.

Phelps said the court has never allowed a speaker to be held liable for remarks on a topic of public interest, in this case U.S. war deaths. She also suggested that the court would find it difficult to draw a line that would protect grieving families without imposing significant limits on unpopular speech.

Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia appeared, to varying degrees, to be searching for a way to rule for Snyder.

Snyder won an $11 million verdict against the church for intentional infliction of emotional distress, among other claims. A judge reduced the award to $5 million, then the federal appeals court in Richmond, Va., threw out the verdict altogether as barred by the church's First Amendment rights.

One possibility suggested by Scalia is that the court could order a new trial in the case.

Alito led Phelps through a series of questions intended to get her to concede that there are instances in which people could file lawsuits like Snyder's, including an African-American who is subjected to a stream of racial hatred from someone who believes blacks are inherently inferior.

"That's a matter of public concern?" Alito asked.

Phelps wavered, saying that race is an issue of public concern, but that church members do not approach people "to berate them." She said the protest at the funeral had the permission of the police and involved only holding up signs.

Westboro members, led by the Rev. Fred Phelps, have picketed many military funerals. They welcome the attention the protests have brought, mocking their critics and vowing not to change their ways whatever the outcome at the Supreme Court.

Church members turned out in advance of the argument Wednesday morning, to march in front of the court with placards of the type they've been carrying to military funerals. A line of people trying to get into the court stretched around the corner of the majestic building atop Capitol Hill.

For Snyder, the case is not about free speech but harassment. "I had one chance to bury my son and it was taken from me," Snyder said.

His lawyer, Sean Summers, told the justices that the protest is unprotected by the Constitution because of the "personal, targeted nature of the attack on the Snyder family."

Forty-eight states, 42 U.S. senators and veterans groups have sided with Snyder, asking the court to shield funerals from the Phelpses' "psychological terrorism."

While distancing themselves from the church's message, media organizations, including The Associated Press, have called on the court to side with the Phelpses because of concerns that a victory for Snyder could erode speech rights.

A decision is expected by late spring.

The case is Snyder v. Phelps, 09-751.


independant1 3 years, 6 months ago

Worth repeating - family has asked that people attending the funeral not acknowledge them, but anyone that wants to peacefully assemble to block them is welcome


cletus26 3 years, 6 months ago

i went to a "Blind Boys of Alabama", Concert last year and these folks showed up. I thought it was pretty annoying and pointless to be there, but they were. I walked right on past them and enjoyed the concert. Likewise, y'all just ignore them folks and do your service. we all know when to expect them, live w/ it.


CorkyHundley 3 years, 6 months ago

If they had a candle light vigil with a sit in on Mass St. would the locals join in?


overthemoon 3 years, 6 months ago

We can call the police when a party is too loud. Disturbing the peace. Or a screamer can be plucked off the street for 'Disorderly conduct'. Are these violations of free speech?

Local ordinances could be used to keep the Phelps crowd and their ilk away from funerals...or performances at the Lied Center??


kernal 3 years, 6 months ago

Forget Phred. The one to watch out for is the nefarious daughter, Shirley Phelps-Roper, the evil future queen of Phelpsland.


gatekeeper 3 years, 6 months ago

It was mentioned above, but want to bring it up again. The Phelp's will be protesting a funeral today in Lawrence. The family has asked that people attending the funeral not acknowledge them, but anyone that wants to peacefully assemble to block them is welcome. They will be in front of the funeral home from 2:15 - 3:00 and by Liberty Hall from 4:30-5:00. If you disagree with them protesting funerals, then come help to protect the family and friends today from the vile hatred.


CHKNLTL 3 years, 6 months ago

Where are all the drunk drivers at when you need them...(to plow through those pesky protesters)? It could become a Holiday.


Chris Golledge 3 years, 6 months ago

So, rites for the dead are a practice of religion, no?

So, why should the freedom of speech trump the freedom to practice your religion?

The right to speak should stop when it interferes with others' rights, and the Phelps' protests interfere with the rights of the mourners.


CorkyHundley 3 years, 6 months ago

The joke is on the haters of the Church.

The Church is getting exactly what they wanted. Worthless accusations of hate by the non-believers. This board is a perfect example of what they wanted. The righteous profilers of the Church, with their vicious hate speech, is just what he Church wanted to point out.


TopJayhawk 3 years, 6 months ago

Barstop. You're nuts. It has nothing to do with the Bible,or Christianity.

It is all about money, and an ol' disbarred lawyer who is very smart and has figured out how to exploit the Constitution for money and notoriety.

Stop being such an idiot. This has nothing to do with religeon.


Mugzzz 3 years, 6 months ago

As a veteran, I have mixed emotions about this. On one hand, I can feel the hairs on the back of my neck stand straight up when the word Phelps is mentioned. On the other hand, as long as his clan are on public property, the 1st ammendment is clear in its protection of them. The sad thing is if the Supreme Court changes this, they are going to open the flood gates up for lawsuits from other religous extremist.

Limitations on Military Expression While the civilian population of the United States is afforded the right to free expression under the First Amendment, the U.S. Supreme Court has affirmed the notion that service members have a reduced level of free speech.[4] While the Court acknowledged that service members do have First Amendment rights, these rights are limited.

"They do, in fact, have the same first amendment rights as their civilian brothers. They are, however, not absolute...The difference is that the military has peculiar needs and interests apart from those of the civilian community it serves, and they preclude the exercise of the right of free speech on as broad a basis as is the practice in the civilian community. No officer or man in the armed forces has a right, be it constitutional, statutory or otherwise, to publish any information (or make any statement) which will imperil his unit or its cause".[5]

This justification offered new precedent to the military expression limitations and differs from those stated in the Articles of War in 1775 where Congress feared a military coup [5] In fact, the Uniformed Code of Military Justice UCMJ specifically includes criminal charges against a service member for various UCMJ offenses that have been levied for verbal and written statements or public displays of political speech [6]

it is sad when our service members, who are governed by the Uniform Code of Military Justice, have given thier lives to give religous extremist the oppurtunity to protest Military funerals, events, and even allow them to protest in from of the Supreme Court.


Doppleganger 3 years, 6 months ago

Burn the flag and some love you.

Don't burn the koran because if you do it will make the Islamics hate and kill you.

Chant at a funeral following local laws and some hate you.

I like the first amendment when I get what I want.


oneeye_wilbur 3 years, 6 months ago

As for Margie's experience, she has had a lot more than some of the justices have had. They have been seated for quite a while and probably have hemmorhoids. So given that, will Kagan or Alitoo sue one for suggesting they need Preparation H? Defamation of the body?

Keep Phelps in court. Keep her spending money, wherever they get it from.

And J/W find out why Fred really didn't go to Westpoint. His father was a railroad detective and his mother died young and he spend a lot of time with an aunt. A Methodist turned Baptist.

That in itself is bad. How could a Methodist become a Baptist, really now?


SpeedRacer 3 years, 6 months ago

It is unfortunate that this is the case that went to the SCOTUS. In this instance, the Phelps were kept segregated from the mourners. If someone had sued who had one of their more "in your face" encounters with them. I think the Supremes would be looking more at the privacy issue over the free speech issue.


oneeye_wilbur 3 years, 6 months ago

No one has still not answered the question why Fred couldn't hack Westpoint? A church revival changed his mind? I doubt it.

The Supreme court should take her into more trials until she is broke.

Anyone else would be charged with a harrasment suit and win. Look at trivial harrasment suits in the workplace and employees get fired over some nonsense. This Phelps woman has "the devil in Ms. Phelps" in her.


2xhawk 3 years, 6 months ago

Until last Friday, Margie was a state employee, pulling down $66k / yr.


Fred Whitehead Jr. 3 years, 6 months ago

On a different drift, where do these people get their money? How do they travel and lodge? Who is giving them money? They cannot print it. Someone is supporting these diseased freaks. Someone is producing filthy lucree for these boilogical degenerates to survive with, to eat, to travel, to buy their sign materials. Who is supporting this diseased maniac? I have never heard anyone approach this spawn of the Devil with these questions, how to they even exist? I cannot imagine any sane person who would contribute to their treasure chest by hiring one of them for legal services. Who would do a despicable thing like that? How does such a cancer on humanity manage to spread their vile assertions? Maybe the media might have something to do with this?


Aimee Polson 3 years, 6 months ago

The Phelpses will be picketing a funeral tomorrow at the Episcopal Church near downtown and at Liberty Hall between 2 and 5. Bring your glitter and stage a counter love rally!


irvan moore 3 years, 6 months ago

the Phelps clan is evil and it's not free speech, it's hate speech.


dontcallmedan 3 years, 6 months ago

What say we get the ball rolling now to make the day Fred Phelps dies a state holiday?


2xhawk 3 years, 6 months ago

Just got done reading the transcript of today's oral arguments.

I believe that the Phelps clan would make any god scratch his/her head, mumble "WTF" and get him/herself a stiff drink, but...

Margie did a great job during today's proceeding. The plaintiff's attorney got interrupted a lot more than she did, but even at that, Margie seemed much more articulate. She also seemed better prepared than several of the justices, particularly Scalia. He kept posing simplistic hypotheticals to her, and she kept responding by citing his own opinions back at him.

If only she'd work for the forces of good...

In the absence of any state law prohibiting this noxious behavior, though, I bet the S. Ct. rules in the Phelps favor.

I was disappointed that they didn't address the changing nature of the distinction between what constitutes a public vs. private figure. If they broadcast their personal details on the internet and social media, how private do ordinary folks get to expect to be these days? Preceding the funeral, the plaintiff here made a number of comments about the war and the Phelps have contended that they were responding to these comments, and didn't target the plaintiff's family simply because their son was a dead soldier.

Anyway, keep in mind this most important fact: Margie's a Washburn grad.


Ray Parker 3 years, 6 months ago

A recent poll shows that several leftist judges who voted for the legalized sodomite mockery of marriage in Iowa may be on the search for new jobs when the results of the retention votes are known after Pink Slip Tuesday in November. Three of the seven pro-sodomy judges are in real trouble, even though no Iowa judge has ever lost a retention vote. Judicial retention votes only work for removing a bad judge when the vast majority of voters are extremely angry. Vote NO on retention of any Kansas Supreme Court "judge" on the ballot on Pink Slip Tuesday in November. Fire Judge Beier.


Agnostick 3 years, 6 months ago

It's worth noting that Snyder, along with many others (including me) are not asking that the Westboro Bigot Cult's First Amendment rights be hampered in even the slightest way. To do so would be to criminalize free speech.

All that is being sought here is a civil redress, based on the idea that "responsibilities" go along with "rights." If the Cult wishes to continue picketing and protesting funerals, they should have the right to do so. They should also face up to the responsibility of any civil suits that arise out of those actions... including full payment of any monetary penalties or compensation awarded to the plaintiffs in those cases.



mickyd01 3 years, 6 months ago

When will the Supreme Court and everyone else realize this group is hiding behind the First Amendment? That isn't what this is all about. It is about harrassment, intimidation and bullying and should be considered a hate crime. When will we protect the rights of our soldiers who are protecting us? This soldier's right to be laid to rest in peace by his family after dying to protect others was taken away by a group of hate mongers hiding behind God and the First amendment (which they wouldn't even have if it weren't for soldiers). Our right to bear arms comes with restrictions. Harrassment at funerals (cemetaries and churches) should be a restriction within the right to freedom of speech.


autie 3 years, 6 months ago

So what you are saying here is not only should the Phelpes prevail, Brownback should not b elected. He too will use the God card to further his secular political goals.


Ralph Reed 3 years, 6 months ago

Well said. Thank you. Especially your last paragraph.


Hudson Luce 3 years, 6 months ago

The First Amendment was originally intended to protect political speech, as a reaction against lese majeste. First Amendment jurisprudence was further expanded by the reaction against the Alien and Sedition Acts, brought in by the Federalist Party and John Adams in an effort to silence and jail their political enemies (see Religious speech was also protected, to an extent, by the First Amendment, but there are some types of religious speech that fall outside of the First Amendment and which are not protected.

"[T]he First Amendment does not completely bar relief against a church in a civil suit. Rather, “[t]he fundamental qualification for protection based on the Free Exercise Clause of the First Amendment is that that which is sought to be protected must be ‘religious.’” Christofferson v. Church of Scientology, 57 Or App 203, 239, rev den, 293 Or 456 (1982), cert den, 459 US 1206 (1983). Whether something is “religious” or not is a matter of law, and is evaluated based on (1) whether the organization accused of defamation is of a religious nature; (2) whether the alleged defamatory statements relate to the religious beliefs or practices of the organization; and (3) even if the other two are satisfied, whether the alleged defamatory statements are nevertheless made for a “wholly secular” purpose."

The argument here will rest on the "wholly secular" content of the speech. Fred Phelps and his "church" invoke the name of God to further their secular political aims, and to defame and harass others. "God" is a sock puppet, a mouthpiece for the Phelps clan, and nothing more. Even if they pass the first two prongs of the Christofferson test, the statements made at Matthew Snyder's funeral should be found to have a strictly secular purpose, that of projecting hatred toward outsiders, including the US population as a whole, and committing whatever acts towards them that should be calculated as to produce the greatest amount of outrage and create the maximum amount of disturbance, as is the intent in libel, slander, defamation, and intentional infliction of emotional distress. The Phelps clan should no longer be allowed to do the damage they do, and then run to the Government for protection when they are met with well-deserved outrage and demand for financial compensation to redress the wrongs they have committed.


Aaron Carpenter 3 years, 6 months ago

why doesn't someone just take em' out and there would be no further problems?


gr 3 years, 6 months ago

bart, would you say it is Christians or would you say that people will use any means and any excuse to use against others. For example, consider Hitler among others. Yes, religion is used to suppress others and people will flee as they did at the beginning of this country. What did they do? Immediately they did the same thing to others. Maybe you should say, people are a dangerous thing.


David Albertson 3 years, 6 months ago

Religion is a dangerous thing. It suppresses rational thought. Fred Phelps and his followers have been corrupted by all the BS in the bible. At what point will these extremists turn to violence? Christians have a long history of voilence against people that they have disagreements with. The KKK is a good example. Another example is the Tea Party's violent tendencies. I don't understand how otherwise intelligent people could buy in to this ancient brainwashing method we call Christianity.


couranna1 3 years, 6 months ago

No these inbred pieces of crap that call themselves phelps and family say that it is a good thing soldiers die as america supports gays. They are a group of the worst kind and I truly wish freddy would die as all his family will then fade away


bobberboy 3 years, 6 months ago

you can drive the speed limit but if you go over you get a ticket.


Ralph Reed 3 years, 6 months ago

There's an argument for both sides on this.

I see it as your right to freedom of speech stops where it infringes on my rights of peaceable assembly and freedom of speech.


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