The U.S. Supreme Court has ruled that protesters at military funerals cannot be sued for inflicting emotional distress on the family of a dead soldier. The vote was 8 to 1.
When Marine Lance Cpl. Matthew Snyder was killed in Iraq, his funeral in Westminster, Md., drew thousands to pay their respects. But it also drew a protest from the Rev. Fred Phelps and six other members of the Westboro Baptist Church, based in Topeka, Kan.
Phelps and other church members have traveled the country for years, picketing hundreds of military funerals to communicate their belief that "God hates the USA" for its tolerance of homosexuality, particularly in the military.
The picketers did not contend that Snyder was gay. Rather, their message, as Phelps puts it, was that "the whole country is given over to sodomy and to sodomite enablers."
The picketers followed their usual practice at the Snyder funeral. They alerted police in advance and followed instructions to set up their protest on public property, at a site 1,000 feet away from the church, near the vehicle entrance.
Though the protest was peaceful and ended before the funeral began, the picketers carried signs with messages offensive to many, including "Thank God for Dead Soldiers," "Fags Doom Nations" and "America Is Doomed."
Albert Snyder, the father of the dead Marine, did not see the signs until later when he viewed TV coverage. He says the picketers turned his son's funeral into a circus, taking away his "last moment" with his son.
"This was a funeral. This wasn't a parade going down the street. I shouldn't have to look away from anything at my own child's funeral," Snyder says. "That's absurd."
Snyder sued Phelps and his church for intentional infliction of emotional distress.
"These people targeted me and my family, and they have done this to over 200 other military men and women's families," Snyder says, his voice rising. "I want to know how you would feel if somebody stood 30 feet away from the main vehicle entrance of a church where you're trying to bury your mother, with a sign that says, 'Thank God for dead sluts.' You tell me that shouldn't be illegal. Is 'fag' any worse than 'slut'?"
A jury agreed with Snyder and awarded him $5 million in damages. But the Supreme Court set aside that verdict Wednesday.
Writing for the court majority, Chief Justice John Roberts said that as repugnant as many of the signs were, they were still plainly related to public, rather than private, matters. They focused on "the political and moral conduct of the United States and its citizens," he said, and speech of such public concern is protected by the First Amendment.
Although Westboro may have chosen to protest the funeral to gain publicity for its views, said the chief justice, and although those views may be particularly hurtful to the dead soldier's father, that does not mean the church members' right of free speech can be curtailed or punished. And a jury award amounts to punishment, Roberts contended, by imposing a penalty for expressing an unpopular viewpoint.
"Speech is powerful," Roberts said in conclusion. "It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Reaction to the decision was markedly muted, given the outrage voiced by veterans groups and politicians at the time the case was argued in the Supreme Court.
The Democratic and Republican leaders of the Senate, along with 40 other members of Congress, filed a brief on Snyder's side. But on Wednesday, reaction on Capitol Hill was nowhere to be found, except in a couple of written statements.
Lawyer Gene Schaerr, who filed a brief in the case for the American Legion, said he was heartened by the fact that the court specifically mentioned that 43 states have enacted laws that put a buffer zone of 100 feet or more around funeral sites. Such laws would not have affected the protest in this case, since protesters were 1,000 feet away.
Nonetheless, says Schaerr, the decision "sends a clear signal to the lower courts that they should not interpret anything in this opinion as casting any doubt about those statutes." The court, however, specifically left open that question, noting that restrictions on the time, place and manner of protests are appropriate in some circumstances.
Wednesday's 8-to-1 ruling came as no surprise to First Amendment scholars, both right and left. They note that the decision is in line with many court decisions protecting the rights of fringe groups — from Nazis marching in Skokie, Ill., to flag burners at a Republican convention in Texas.
University of Chicago law professor Geoffrey Stone notes that Wednesday's ruling fits neatly into that tradition, calling it a "classic case." The only surprise, maintained Stone, was that anyone dissented.
Justice Samuel Alito was the lone dissenter. He viewed the protesters' speech as targeting a private person — the father of the dead soldier — and said that the First Amendment does not give license to such outrageous conduct.
"In order to have a society in which public issues can be openly and vigorously debated," wrote Alito, "it is not necessary to allow the brutalization of innocent victims."