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.


Ralph Reed 7 years, 8 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.

jafs 7 years, 8 months ago

Or that you have the right to freedom of speech, but when the exercise of that right harms another, you can be held accountable in a civil court.

whats_going_on 7 years, 8 months ago

this. I don't know, I think they could have a case of harrassment, but I don't know how far it would go to "punish" the phelps

madameX 7 years, 8 months ago

Agree, and I was getting more than a little annoyed at the news coverage last night, which was all "the Marine's father is suing to stop the Phelps family from protesting" Grrrr. No he isn't and even if your parent station did file an amicus brief on the WBC's side, shouldn't you at least frame the issue right?

ebyrdstarr 7 years, 8 months ago

The flaw in that argument is that private citizens, like the WBC, can't infringe on constitutional rights. Like when the Journal World deletes a comment, the paper hasn't violated your right to free speech. If I break into your home and look through your stuff, I haven't violated your 4th Amendment rights. (Broken other laws, sure, but not that one.) If you feel led to proselytize to me, but I tell you to shut up, I haven't violated your right to free exercise of religion. Our constitutional rights are enforceable against the government, not against other private citizens.

sandrat7 7 years, 8 months ago

He was a soldier. That's all it takes for the evil Phelps.

gr 7 years, 8 months ago

If he wasn't this would be a case of Phelps using the military against others. It isn't as bart would suggest that the military was dangerous, but it's that people are. They tried different things and never got much of a rousing, but found out using the military did. Just like religion. Used as a tool for harm. If they were just ignored, they'd keep trying different things. Publicity drives them. Does it make any sense to you for them to picket the military when they have nothing to do with being gay, excepting now they can ask if you are gay? Looks like Phelps would support that.

fester0420 7 years, 8 months ago

They seam to think with there warped minds that our soldiers are dying over seas because America tolerates gays, and god is punishing us for it.pretty moronic if i say so myself. some one needs to put a stop to them

kernal 7 years, 8 months ago

No. The Phelps Gang of Thugs has added soldiers who died in the line of duty as their new mission of hate.

David Albertson 7 years, 8 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.

beatrice 7 years, 8 months ago

That O'Donnell lady turned me into a newt, she did! That is kinda violent, don't ya think?

Gene Wallace 7 years, 8 months ago

CCG@Beatrice! We witches don't do toads or newts anymore. Have you noticed the increase in Taco Dogs and squirrels?

fester0420 7 years, 8 months ago

if you need examples of how the clan has been violent you need to go back to school

Mike Hatch 7 years, 8 months ago

Have you read Addicted to Hate? If not, google it. It's an interesting (long) read. It was either from reading that, or watching one of the many documentaries that's been done over the last decade or so that showed arrests made during their earlier protests where things got physical. I think they learned early on not to do that anymore.

gr 7 years, 8 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.

Aaron Carpenter 7 years, 8 months ago

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

Michelle Derusseau 7 years, 8 months ago

1) Because Fred and his followers are very clever in that they take their children and grandchildren to these protests and surround themselves with them. Nobody in their right mind is going to take a shot at someone who is surrounded by children. The unfortunate things is that these children are growing up surrounded by the hatred their parents and grandparents preach.
2) It would only add fuel to the fire regarding the "evils of America" and probably just make matters worse. The question as I see it is why can't our government just have some brains and protect the rights of our soldiers and their families when they are at a cemetary and/or church?
Someday Fred and the rest of his followers will have their judgement day.

Gene Wallace 7 years, 8 months ago

Ya know. A silent "Flash Mob" would work well, too!

Gene Wallace 7 years, 8 months ago

Add the emphasis of facing away from them like a "Shunning".

Hudson Luce 7 years, 8 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.

BrianR 7 years, 8 months ago

So the finding is the same if we substitute the word "fags" with the word Jews?

These people have crossed a line they should never have been allowed to cross.

acsgreens, I am surprised that this didn't happen a long time ago.

Ralph Reed 7 years, 8 months ago

Well said. Thank you. Especially your last paragraph.

Lisa Rasor 7 years, 8 months ago

I didn't think Brownback had any secular goals.

BrianR 7 years, 8 months ago

Damn bifocals, I looked at your post and I though, "What are secular goats?"

Michelle Derusseau 7 years, 8 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.

ebyrdstarr 7 years, 8 months ago

Those civil penalties only exist when a government agency (a court) enforces a judgment. Do you really, really not see how using a governmental agency to enforce large money judgments based on offensive political/religious speech implicates the First Amendment? If the government will make me pay you millions of dollars because you are offended by my political speech, isn't that going to have a chilling effect on my exercise of my First Amendment rights? And that chilling effect is directly related to the government's actions: the court's imposition of a civil money judgment against me.

You're so entranced by your own "rights come with responsibilities" mantra, I feel like you're just refusing to learn the real constitutional issues at stake here.

jafs 7 years, 8 months ago

Well, let's see - the civil trial I sat on was a jury trial - hence it was not the "government", but rather the "people" who decided it.

And, the issue isn't "offensive" speech, it's speech that harms others intentionally.

When the Phelps' go to funerals and do what they do, the trial jury decided that they were guilty of the intentional infliction of emotional distress.

There are other instances in which speech is treated as conduct - "fighting words" or advocating the violent overthrow of the government, or inciting to riot, etc. The question is whether the Phelps' activities are rightly viewed as such.

ebyrdstarr 7 years, 8 months ago

Of course it's a jury deciding the case, but it's the government enforcing it. The fact that a civil judgment implicates constitutional rights isn't a controversial point of law. It's well-established.

A jury did decide the WBC was liable for intentional infliction of emotional distress. The question now is whether they ever should have been allowed to consider that claim.

The issue is offensive speech. Speech that causes offense, isn't that basically the same thing as harm? I maintain that political/religious speech should not give rise to a civil lawsuit based on the offense taken by a listener.

jafs 7 years, 8 months ago

I disagree - harm is distinctly different from offense.

If people are simply offended, I agree with you - however, if they are caused pain and/or distress by someone's actions, I do not.

Proving that one has been emotionally distressed is different from simply saying one has been offended.

ebyrdstarr 7 years, 8 months ago

My right to speech, specifically in the most protected area of politics and religion, shouldn't be limited by your emotional response.

ebyrdstarr 7 years, 8 months ago

There's no such thing as the right not to be offended.

The fact that some might take offense at a political or religious protest is not justification for banning those protests or using courts of law to penalize those protesters.

jafs 7 years, 8 months ago

Your right to speech doesn't include the right to harm others with it.

ebyrdstarr 7 years, 8 months ago

Emotional distress based on political/religious speech shouldn't be a harm that a court of law will impose a judgment of damages for. Obviously, we're never going to agree on this.

jafs 7 years, 8 months ago


I have a hypothetical situation for you:

Let's say that the Phelps' decide to set up camp outside your house or apartment - they're on public property and legally allowed to be there.

They hold up signs that say "God hates you - you're going to hell" possibly accompanied by some pictures.

They're there every day when you leave the house in the morning, and when you come back at night.

At first, it doesn't bother you too much, but after a while (weeks, months?) it starts to affect you - you approach them and ask why they are doing this and they respond they are simply trying to tell you the truth about your situation. When you tell them you don't want to go to hell, what can you do about it - they respond there's nothing that you can do to change your fate.

You begin to have trouble sleeping, have nightmares, and seek counseling and/or medication to help you relax and function.

Is it your position that you should have no legal claim against them for their actions, based simply on the fact that they have the word God in their signs?

fester0420 7 years, 8 months ago

its no longer free speech when you infringe on the rights of others

2xhawk 7 years, 8 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.

ebyrdstarr 7 years, 8 months ago

I agree that Margie acquitted herself admirably.

When reading these argument transcripts, it's always interesting what little parts of the greater legal picture they actually focus on. Having read the 4th Circuit's opinion, I, too, expected the public vs. private figure aspect of the case to be more central to the argument.

dontcallmedan 7 years, 8 months ago

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

Tristan Moody 7 years, 8 months ago

I'm a bigger fan of letting him drift into obscurity.

irvan moore 7 years, 8 months ago

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

Aimee Polson 7 years, 8 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!

Fred Whitehead Jr. 7 years, 8 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?

2xhawk 7 years, 8 months ago

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

SpeedRacer 7 years, 8 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.

fester0420 7 years, 8 months ago

moot point considering you're just saying no mater what some will hate you ans some will love you

TopJayhawk 7 years, 8 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.

independant1 7 years, 8 months ago

It's all about money and attention, the felpses are pros, they make ambulance chasing lawyers look like schoolyard kids. Heck, they have the ambulance follow them. It's a modern day 1st Ammendment con game of sorts

they make a good living with this crap,

trot the kids out to your tasteless theatrical act, put kids out front between perp and anti protest protester, file suit. collect $$$. He bumped me momma!

reminds me of the larry flint (flag bearer for free speech, bleeeach!) series of court cases. absolutely tasteless.

The lowest of low lifes hide behind our constitutional protections, they have to look up to see a slugs belly. disgusting

David Roberts 7 years, 8 months ago

Yep, and the SC Justices will be spending the next few months trying to figure out where to draw the line. It'll be interesting to see how this turns out. It'll either provide a blessing to the Westboro folks (who seem to know exactly where the line is), or remove the implicit "you" in their message, or remove all incentive for their activities.

independant1 7 years, 8 months ago

no v, didn't say that. Said it's disgusting low life's like the felpses (like flint) end up being the flag bearers of rights. They do have the same protections, they just seem to use up more than their share of protections with their crapola.

independant1 7 years, 8 months ago

yup, 'twill be interesting to see where SCOTUS draws the line on this one.

Maddy Griffin 7 years, 8 months ago

Thank you, I was just about to post that, but my computer didn't want to copy and paste it this morning.

Ralph Reed 7 years, 8 months ago

And which member of their church are you?

I don't hate their church, I just don't like what they do under the guise of freedom of religion and freedom of speech. They're horribly misguided.

Amy Heeter 7 years, 8 months ago

I believe it is a sin under the terms of membership to the WBC to post on the evil internet forums.

Chris Golledge 7 years, 8 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.

CHKNLTL 7 years, 8 months ago

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

gatekeeper 7 years, 8 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.

SpeedRacer 7 years, 8 months ago

Maybe the Zombie Walk could start a little early.

Gene Wallace 7 years, 8 months ago

I'll be there!!! They are going to "Love" me! CCG!

kernal 7 years, 8 months ago

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

yankeevet 7 years, 8 months ago

Wasn't Shirley Phelps in that movie; Exocists? or was it The Night of the Living Hoes?

overthemoon 7 years, 8 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??

David Roberts 7 years, 8 months ago

There are time and place restrictions on free speech. I can say, "KU is the best," but I probably would not be able to claim that the First Amendment protected my right to do that repeatedly with a bullhorn outside your window at 3:00 am.

According to the facts of this case (at least what I gathered from the oral arguments), the Phelps spoke with the police and got permission to stand where they stood. This case goes to the heart of their message and whether the First Amendment allows someone to single out an individual at a private event and say something that causes emotional distress without that behavior leading to a civil cause of action.

overthemoon 7 years, 8 months ago

I can assure you that you would cause me to exercise those 2nd amendment rights...and I'm all for gun control but I have my limits!!

Reuben Turner 7 years, 8 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.

independant1 7 years, 8 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

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