WASHINGTON (CN) – Attorney Margie Phelps, daughter of Westboro Baptist Church pastor Fred Phelps, tried to persuade the Supreme Court on Wednesday that church members had a First Amendment right to protest at a military funeral. “We were seven picketers … 1,000 feet away, out of sight, out of sound,” she said. But a lawyer for the late Marine’s father said that the group’s signs, stating “God Hates Fags” and “You’re Going to Hell,” were not protected speech, because the soldier’s father is not a public figure.
In 2006 members of the Topeka, Kan.-based church protested at the funeral of Lance Cpl. Matthew Snyder, a 20-year-old Marine killed in Iraq, holding signs stating, “God Hates Fags,” “Thank God for IEDs,” “You’re Going to Hell,” and “God Hates You.” The church believes that soldiers’ deaths are part of God’s punishment to the United States for tolerating homosexuality.
Matthew’s father, Albert Snyder, sued the church under Maryland tort law and was awarded $5 million in damages. The 4th Circuit U.S. Court of Appeals reversedthe award, siding with church members on their First Amendment claims.
Sean Summers, Snyder’s attorney, said the “private, targeted nature” of the comments at the funeral made them unprotected speech and gave rise to a claim for infliction of emotional distress.
Summers urged the court not to rely on the 1988 Supreme Court decision Hustler v. Falwell, which found that a public figure can’t claim civil damages for satiric or hyperbolic speech. He pointed out that while Hustler involved a parody about a public figure, televangelist Jerry Falwell, this case involved a father trying to “bury his son in a private, dignified manner.”
Summers argued that the 4th Circuit decision upholding the church members’ First Amendment claims violates the state’s obligation to provide Snyder a remedy under tort law.
“He is a private figure, a grieving father, and he is left without any remedy whatsoever,” Summers said.
Margie Phelps, attorney for the Westboro church and the pastor’s daughter, argued that Snyder became a public figure as soon as he appeared on television to talk about the incident.
Phelps said church members abided by Maryland law when they protested at the funeral, and said the display was part of ongoing expression by church members about their beliefs.
Justice Elena Kagan, the first to question Phelps, asked if there would be a cause of action if Westboro church members followed a wounded soldier and demonstrated outside his home, work and church.
“We don’t do follow-around in this church,” Phelps said. “We were … seven picketers, 1,000 feet away, out of sight, out of sound.”
Phelps said church members always demonstrated with “great circumspection” and an awareness of constitutional boundaries of protected speech. She said their words were not “fighting words,” which aren’t protected under the First Amendment, but represented a religious viewpoint on the broader public discussion “about dying soldiers” and the “morals of the nation.”
She said if Snyder wanted to step into the realm of public discourse, he should expect an answer.
Justice Samuel Alito asked if the First Amendment would protect someone who approached a woman at a bus stop who had just visited the grave of her soldier grandson and described how improvised explosive devices worked in gruesome detail.
Phelps said she could possibly imagine how a claim may trigger a cause of action, because the woman was confronted out of the blue, but there was “absolutely much more than that here.”
“Approaching an individual up close and ‘in their grill’ to berate them gets you out of the zone of protection, and we would never do that,” Phelps said.
She said this was a case of a man in the public discourse saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
As for choosing the funeral as a venue, Phelps said, “It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated.”
The case is 09-751, Snyder v. Phelps.