Washington 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.
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.