Oct. 05, 2010
Lawsuit against Fred Phelps poses First Amendment test
By LAURA BAUER
The Kansas City Star
Under our First Amendment, there seem few — very few — social lines that cannot be crossed in this country.
Flags can be burned, Nazis can march, profanity be displayed, according to the U.S. Supreme Court. Like legal Spandex, free speech is stretched and stretched to cover some ugly things, making many of us uncomfortable in the process.
Waving signs that proclaim “God Hates America” and “God Hates Fags” and “Thank God for Dead Soldiers” outside a funeral for a fallen serviceman?
Will this fit, too? Lower courts have disagreed.
So today, the nine U.S. Supreme Court justices will hear Snyder v. Phelps.
“We’re going to court saying there’s a line somewhere,” said Craig Trebilcock, one of the attorneys for the father of Marine Lance Cpl. Matthew Snyder, who died four years ago in Iraq. “A group trying to use a claim of religion, or a claim of some sort of free speech, cannot use it as a club to harass, demean and crush a family.”
Rising from the other table will be the daughter of one of the most controversial — and some argue notorious — men in Kansas history, the Rev. Fred Phelps, pastor of Topeka’s Westboro Baptist Church.
“It’s not a First Amendment case, it is the First Amendment case,” Margie Phelps, attorney for Westboro Baptist, said last week. “It’s the ultimate test on whether this republic is real. The point of a republic is to protect from mob rule the dissenting view.”
The church’s dissenting view is that God reviles America for its tolerance of homosexuality and that deaths of military personnel are divine retribution.
And like it or not, she said, her family and their tiny church have the right to say whatever they want on public property.
The case, which has wound its way from a Maryland courtroom through the U.S. 4th Circuit Court of Appeals, pits free speech against privacy in a society that some would argue has too little of the latter.
“I had one chance to bury Matt and they took it away from me,” said the Marine’s father, Albert Snyder. “For them to say they didn’t disrupt the funeral, they are crazy.”
One of his other attorneys, Sean Summers, will tell the court that the church launched targeted abuse against the father and the family before, during and after the services.
Margie Phelps: “All this jabber about captive audience and private rights; it doesn’t fit the principal of law.”
Dan Winter, executive director of the American Civil Liberties Union of Kansas and Western Missouri, sees the case as a test of the amendment’s strength.
“It’s really a question of if the government is going to cut down this public speech because it’s vile, then what’s next?” he asked. “The Methodists? Is it newspapers? The blogs? The Republicans?”
The case will continue to elicit raw emotions and ethical and legal dilemmas.
The 20-year-old Snyder had only been in Iraq five weeks when he died in 2006. A day after two Marines showed up at his doorstep to give him the news, Albert Snyder learned that the Phelps clan would protest the funeral in Westminster, Md. He had seen members on TV, protesting other soldier funerals, and thought, “Oh, that’s great, that’s just what we need.”
The day of the funeral, seven members of the Topeka church showed up.
Shirley Phelps-Roper said the group stood the required 1,000 feet away.
“The church told us where to stand,” she said. “They put us in the corn field where the crickets chirp.”
Regardless, everything was disruptive, Snyder said. Swarms of media showed up. A SWAT team. State and county police. A Winnebago that served as command central for authorities.
Snyder said the stress from the protest and rhetoric from the church in the days after complicated his diabetes and caused depression.
A federal district court jury in Baltimore awarded nearly $11 million in damages to Snyder in 2007, saying the Phelps group intentionally inflicted distress on the family.
The award later was reduced to $5 million and eventually was overturned on appeal. In part, the three appellate judges said the protesters’ signs “clearly contain imaginative and hyperbolic rhetoric intended to spark debate” and thus were protected by the First Amendment.
The protest was not aimed specifically at the Snyder family, Phelps-Roper said.
“We didn’t know those people; we’re talking to a nation,” she said. “There was not one hitch in that funeral, nothing disruptive. …You just don’t like these words because they strike right at your heart.”
Snyder did not decide to sue until later, after he saw another family on the evening news going through a similar ordeal.
“What kind of society are we if we can’t bury our dead in peace?” Snyder asked. “It’s easy for people to say it’s free speech. You come back and tell me it’s free speech after they do it to your kid.”
Carl Tobias, University of Richmond (Va.) law professor, admitted being “conflicted personally. I am concerned about the First Amendment. But there’s a lot of sympathy, I think, and justifiably so, for the plaintiff, and I feel that, too.
“The thought is these are private people in a private moment, why should they be subjected to this behavior?”
The 48 states and District of Columbia supporting Snyder’s appeal say many legislatures have enacted laws limiting funeral protests that could be undermined if the church wins.
Led by Kansas Attorney General Steve Six, the states also contend that funerals are special circumstances protected from “unwanted emotional terrorism.”
“It’s not so much about the content of the speech, but when they do it, how they do it and to whom they do it,” said Steve McAllister, Kansas solicitor general. “They’re targeting private families.”
The ACLU submitted its own brief in favor of Westboro.
At the University of Kansas, law professor Richard Levy said, “If I had to go to Vegas and lay odds … I would be betting on the Phelpses. But it’s not a sure thing.”
Twenty-six members of the Topeka church have traveled to Washington, D.C. During arguments, three will be at the table with Margie, among them Phelps-Roper and another sister, Elizabeth Phelps.
Fourteen will be in the gallery watching, and eight more will be outside protesting with signs similar to the ones waved outside Matthew Snyder’s funeral.
“That First Amendment has weathered a lot of things — burning flags, pornography, all kinds of indecency,” Margie Phelps said. “Can the First Amendment survive a little humble church in the middle of the country talking to this nation about its sins that have gotten them in trouble with God?
“Can our First Amendment weather that?”
Some Supreme Court free speech rulings
Chaplinsky v. New Hampshire
“Damned Facist” deemed “fighting words” leading to breach of peace
National Socialist Party of America v. Village of Skokie
Nazis allowed to march in Illinois community whose population included Holocaust survivors. the U.S. Supreme Court’s role in 1977 was to decline review, leaving in place a lower-case ruling in favor of the Nazis.
Texas v. Johnson
Forty-eight state laws that banned U.S. flag burning invalidated
Hill v. Colorado
State allowed to order abortion protestors to stay 8 feet from clinic patrons
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