WASHINGTON — Supreme Court justices seemed both troubled and divided Wednesday as they questioned whether a small Kansas church could be punished for an outrageous protest outside a military funeral.
The court did not clearly tip its hand during the hour-long oral argument in the case pitting Westboro Baptist Church against a grieving Pennsylvania father. Several justices did, however, hint that the 2006 funeral protest was lawful even if obnoxious.
"Didn't they stand where the police told them to?" Justice Ruth Bader Ginsburg noted at one point, adding that the protest "was with the knowledge and permission of the police."
But to underscore the case's difficulty, Ginsburg herself later questioned whether the First Amendment should "tolerate" what she termed "exploiting a private person's grief" for the purpose of getting attention.
The most anticipated free-speech case of the year, Snyder v. Westboro Baptist Church centers on a March 2006 protest by seven Westboro members outside a Roman Catholic Church in Maryland. Inside the church, Albert Snyder was holding a funeral service for his late son, Matthew.
Matthew Snyder was a 20-year-old Marine lance corporal serving in Iraq's Anbar province when he died in a vehicle accident.
"Mr. Snyder simply wanted to bury his son in a private, dignified manner," attorney Sean E. Summers of York, Pa., told the court during the hour-long oral argument Wednesday.
But during the Snyder funeral service, roughly 1,000 feet away from the church, Westboro Baptist protesters had carried signs conveying such messages as "You are going to Hell," "God hates you" and "Thank God for dead soldiers." One sign, according to a legal brief, included "a picture of two males performing anal sexual intercourse."
Church members, several dozen of whom were present outside the court Wednesday, believe that God is punishing the U.S. for its toleration of homosexuality.
Albert Snyder didn't see the protest signs until viewing a television news show later that night. He sued, claiming intentional infliction of emotional distress, and eventually won a $5 million award. An appellate court threw out the award.
"The words that were at issue in this case were (from) people from a church delivering a religious viewpoint," Topeka-based attorney, and Westboro Baptist Church member, Margie J. Phelps told the court.
Phelps further argued that Matthew's father Albert had thrust himself onto the stage by going "to the public airwaves" with comments about the Iraq War following his son's death.
Justices on Wednesday kept circling back to the question of whether the Snyder funeral was a public or private event, and whether that matters for deciding the case.
"If he simply buries his son, is he a public figure open to this protest or not?" Chief Justice John Roberts, Jr. asked, receiving an equivocal answer.
The question is crucial, because speech about public persons and public affairs typically wins the most protection from courts.
"What case stands for the proposition that public speech or speech on a public matter directed toward a private person should be treated differently depending upon the recipient of the speech?" Justice Sonia Sotomayor asked, without getting a clear answer.
In a 1988 case pitting the Rev. Jerry Falwell versus Hustler magazine, the Supreme Court unanimously decided a public figure like Falwell could not win damages for emotional distress caused, in that case, by a harsh magazine satire. Sean Summers, the lawyer representing Snyder, repeatedly cited the Falwell case, arguing it was different because his client is a private individual.
"The private nature of this speech is what makes it unprotected," Summers said.
Justices also pressed hard on whether demonstrators could follow families around, demonstrating day after day or, in a hypothetical scenario proposed by Justice Samuel Alito, targeting a "grandmother who has raised a son who was killed in Afghanistan."
Phelps responded that the First Amendment would protect most such speech except in "a very narrow circumstance."
Largely in response to the notoriety given the Westboro Baptist Church protests, many states have enacted laws restricting funeral protests, and 48 states joined in an amicus brief supporting Snyder's cause. Some of these laws could potentially be called into question if the Supreme Court sides with the Westboro Baptist Church.
The court will rule before next June.
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