WASHINGTON — The most vexing free speech fight in years confronts the Supreme Court on Wednesday, pitting a loud-mouthed, anti-gay Kansas church against a grieving Pennsylvania father.
The father, Albert Snyder, has already won the popular vote hands-down. Forty-eight states support him. So do 42 senators and all the major veterans' organizations.
The constitutional tally, though, isn't nearly so simple.
"The government may not curtail speech simply because the speaker's message may be offensive to his audience," University of Missouri Law School Professor Christina Wells noted in a legal filing.
In Snyder v. Phelps, justices will decide whether to protect speech that Wells characterized as "provocative, offensive and disrespectful." Wells acknowledged it might even be considered "contemptible."
For all the pain they may have caused, however the public rants against homosexuality by the Westboro Baptist Church of Topeka, Kan., might just be found to be protected by the First Amendment.
"This is obviously an emotion-laden case," said Steven R. Shapiro, legal director of the American Civil Liberties Union, but "the First Amendment was designed to protect unpopular speech against (the majority's) distaste. At the end of the day I think that's where the Supreme Court ends up."
Most everyone outside of the small Westboro Baptist Church voices distaste for how church members exploited the funeral of Albert Snyder's son Matthew.
Matthew Snyder was a 20-year-old Marine lance corporal and mechanic serving in Iraq's Anbar province when he died in a non-combat vehicle accident in March 2006. The family planned a private service at a Roman Catholic Church in Maryland.
Fred Phelps Sr., Westboro's 80-year-old pastor, thought the Snyder service could serve his church's purpose. The fundamentalist church, founded in 1955, has about 70 members, about 50 of whom are Phelps' children, grandchildren or in-laws.
Phelps wanted to hijack the March 10, 2006, funeral service as a pulpit to convey his belief that God was punishing the U.S. for tolerating homosexuality.
"The purpose of picketing in connection with funerals is to use an available public platform, when the living contemplate death, that there is a consequence for sin," the church's Topeka-based attorney, Margie J. Phelps, explained in a court brief.
Margie J. Phelps is the daughter of Fred Phelps Sr. She will argue the case Wednesday, defending what the funeral protesters did.
One of the protesters' signs said: "God Hates You." Another said: "You Are Going to Hell." Another said: "Thank God for Dead Soldiers." One sign included, as a legal brief explained, "a picture of two males performing anal sexual intercourse."
The seven protesters were about 1,000 feet from the church, and Albert Snyder didn't see the protest signs until viewing a television news show later that night. Snyder, however, said the demonstration and a related "epic poem" posted on the church's website, www.godhatesfags.com, exacerbated his diabetes and his depression.
"I look at this as an assault on me," Snyder testified. "Someone could have stabbed me in the arm or the back, and the wound would have healed. But I don't think this will heal."
He sued, claiming intentional infliction of emotional distress, and he won. A jury in 2007 awarded Snyder $10.9 million. A judge subsequently lowered the judgment to $5 million.
The 4th Circuit Court of Appeals overturned the judgment. In part, the three appellate judges explained that the funeral protesters' signs "clearly contain imaginative and hyperbolic rhetoric intended to spark debate," and were not impugning the Snyder family.
The 48 states that support Snyder's appeal retort that many legislatures have enacted laws limiting funeral protests. These laws could be undermined if the church wins. Led by Kansas Attorney General Steve Six, the states also that contend funerals are uniquely deserving of freedom from interruption.
"No traditional, necessary or even marginally valuable method of protest will be lost by holding the Phelpses accountable for their emotional terrorism," former acting solicitor general Walter Dellinger argued in the states' brief.
Previously, though, the Supreme Court has protected even grotesque exaggerations despite the pain they may cause. Notably, the court in 1988 unanimously rejected a $200,000 judgment against Hustler magazine for a satirical ad targeting the Rev. Jerry Falwell.
The satire depicted Falwell as supposedly having drunken carnal relations with his mother in an outhouse, among other things. In rejecting Falwell's suit, the Supreme Court stressed a painful constitutional principle likely to recur Wednesday.
"In the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment," the late Chief Justice William Rehnquist wrote, adding that constitutional protections apply "even when a speaker or writer is motivated by hatred or ill-will."
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