The U.S. Supreme Court continues its unpredictable foray into LGBT-related legal conflicts—this week announcing that it will decide whether a protester has a First Amendment right to use a private funeral service as a staging ground for their hate speech against gays.
It’s a complicated case, and one in which one of the LGBT community’s strongest allies—the ACLU—has taken sides with one of the LGBT community’s most hostile enemies—Fred Phelps and his Westboro Baptist Church in Kansas.
The court’s acceptance of this case, Snyder v. Phelps, comes less than two months after the court agreed to take Doe v. Reed, to examine whether state law can require public disclosure of the names of people who signed a petition to force a referendum on a domestic partnership law in Washington State. The full court also took the unusual action that month of blocking a federal judge in San Francisco from allowing a closed-circuit broadcast of the Proposition 8 trial because supporters of the initiative claimed they could be harassed if the public trial was widely viewed.
This latest case, Snyder v. Phelps, seeks to undo a ruling in Phelps’ favor in the conservative 4th Circuit U.S. Court of Appeals. A three-judge panel for that circuit ruled last September that Phelps’ anti-gay messages—on placards and a website—are protected speech. The fact that the high court has decided to hear the case indicates that at least four of the nine justices believe that ruling may have been in error.
The petition of Snyder to the Supreme Court poses three questions concerning how far offensive expressions can go—and in what context—before they exceed the protections guaranteed by the First Amendment. The 4th Circuit ruled that “distasteful and repugnant” protests surrounding the funeral of a servicemember were protected. But attorneys for the servicemember’s family argue that such speech should not be allowed to inflict emotional distress on a private party, particularly one trying to exercise his freedom of religion during a funeral service.
The conflict began in March 2006 when the family of Matthew Snyder, a Marine killed in Iraq, held a funeral service for him. Later that day, they saw news reports of the funeral being picketed by Phelps and his followers carrying signs, saying such things as “Fag troops,” “Semper fi fags,” “God Hates Fags,” and “Thank God for dead soldiers.”
According to the U.S. District Court opinion issued by Judge Richard Bennett, in Baltimore, Phelps and his followers attended the funeral “without invitation in order to express their views against homosexuality, Catholicism, and the military.” The Westboro group has staged similar protests at other military funerals, prompting Congress to pass the Respect for America’s Fallen Heroes Act in May 2006. The law prohibits protests within 300 feet of any federal military cemetery within 60 minutes of a funeral.
That law is not at issue in this case. Instead, at issue is the charge by Snyder’s father, Albert, and family that the Phelps group’s expressions at the funeral and its comments later on its godhatesfags.com website constituted invasion of privacy, intentional infliction of emotional distress, and civil conspiracy.
Art Leonard, a well-respected LGBT law professor and commentator said he thinks “the conservatives on the court are eager to cut back tort liability whenever and wherever they can.” A “tort” is a wrongful act for which a person can be made to pay damages.
“Here’s a chance for them to say that people who speak publicly about controversial issues giving their opinion should not have to pay damages just because expressing their opinion causes emotional distress to somebody,” said Leonard. The question here, he said, is whether the conduct of Phelps and his followers “steps so far across the line into truly outrageous conduct that it should be held to have sacrificed the protection of the First Amendment.”
In defending themselves, Phelps and followers argued that their expressions were protected by the First Amendment guarantee of freedom of religion.
A federal jury trial found Phelps and followers guilty and the court awarded Snyder $5 million in compensatory and punitive damages.
In denying the Phelps group’s request for a rehearing or retrial, the district court said the case “involves balancing [the Defendants' First Amendment rights of religious expression] with the rights of other private citizens to avoid being verbally assaulted by outrageous speech and comment during a time of bereavement.”
The 4th Circuit said the district court erred by allowing a jury to decide whether the Phelps’ group’s expressions, such as “God Hates Fags,” “Priests Rape Boys,” and “Fag Troops,” were within the realm of protection under the First Amendment or whether they were directed at the Snyder family specifically. No “reasonable reader” of such messages could assume any of these signs were “asserting actual and objectively verifiable facts about Snyder or his son,” said the 4th Circuit.
“Whether ‘God hates’ the United States or a particular group, or whether America is ‘doomed,’ are matters of purely subjective opinion that cannot be put to objective verification,” said the court.
“As a threshold matter, as utterly distasteful as these signs are,” said the 4th Circuit, “they involve matters of public concern, including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.” Such issues, said the panel, are not statements directed toward a private party “but rather are issues of social, political, or other interest to the community.”
“A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion,” said the 4th Circuit, “is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts.” The same is true for the website remarks, said the court.
The Snyder v. Phelps case won’t be argued until the fall, in the 2010-11 session.
The 4th Circuit decision notes that Phelps, the lone pastor of the Westboro, Kansas, “church,” has operated the organization for more than 50 years, and has a membership of “approximately sixty or seventy members, fifty of whom are his children, grandchildren, or in-laws.”
“Among their religious beliefs,” wrote the 4th Circuit, “is that God hates homosexuality and hates and punishes America for its tolerance of homosexuality, particularly in the United States military.”
Copyright ©2010 Keen News Service. ALL RIGHTS RESERVED.
What will it take for the court to decide that “those are fightin words”? When someone from a funeral decides to take matters into their own hands and gun down the Phelps KLAN? Maybe then the court will see just how offensive these Phelps’ really are.
I don’t understand how this got to the high court. It’s a legal no-brainer. Clearly it is protected speech and other courts have limited Phelps’ activities to the periphery because no right is absolute. e.g. one is not free to falsely shout fire in a crowded theater or invite others to eminent lawless action, These are “reasonable time place an manner restrictions.” All well-settled law.
The problem I have with articles like this is that the writers (with all due respect) miss the forest for the trees at the same time they take to the tainted bait. The real questions are Church and State and who funds Phelps. He has lost millions in civil judgments for intentional inflection of emotional harm and violating the civil rights of others. So where does this backwater bigot get that kind of money?
Finally Phelps knows he will lose and the ONLY reason these matters are forced into court is as a device to keep their hate in the news. They do it almost SOLELY to get the media attention. This generates funds for them. So why do writers take to this tainted bait which really only serves him as you preach to the choir? Phelps will lose in court. So why even dignify him by chomping at his tainted bait?