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Supreme Court: Phelps protests are protected speech
News update Wed., March 2, 2011
by Lisa Keen, Keen News Service

This article shared 4016 times since Wed Mar 2, 2011
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The U.S. Supreme Court ruled March 2 that the First Amendment protects an anti-gay protester's demonstrations in close proximity to a private funeral service.

The case, Snyder v. Phelps, arose out of a conflict around anti-gay activist Fred Phelps and his followers staging loud and hate-filled protests near the funerals of American soldiers killed in Iraq. The protest signs claimed the soldiers deserved to die because American society was tolerating homosexuality.

One soldier's family decided to take action to stop the protests and filed suit in federal court, claiming the protests amounted to intentional infliction of emotional distress, a violation of the family's right to privacy, and civil conspiracy.

In an 8-1 decision, with only Justice Samuel Alito dissenting, the high court ruled that the free speech clause of the First Amendment protects public speech, which includes speech related to "any matter of political, social, or other concern to the community."

The decision upheld a ruling by the 4th Circuit U.S. Court of Appeals.

The vote was somewhat of a surprise. At oral argument in October, most of the justices seemed to challenge Phelps' attorney, his daughter Margie Phelps, about their "outrageous conduct" and "exploiting" a family's time of grief.

Sotomayor had said she had trouble with Phelps' claim that the protests were simply engaging in public discourse about a public issue, given that some of their speech was "directed at the Snyders" and "talking about them raising Matthew for the devil, teaching him to defy the creator, to divorce and commit adultery."

Chief Justice John Roberts said the case largely turned on whether the Phelps' protests were "of public or private concern, as determined by all the circumstances in the case." Citing several Supreme Court precedents, he noted that speech on public concerns is entitled to "special protection." Roberts said the content of the Phelps protest "plainly relates to broad issues of interest to society at large…." He reiterated the messages on several posters, including "God Hates Fags" and "Semper Fi Fags," "Fags Doom Nations," and "Fag Troops."

"While these messages may fall short of refined social or political commentary," wrote Roberts, "the issues they highlight —the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import."

In evaluating the context of the messages, Roberts said that, although the protest was staged outside a private funeral, it took place "peacefully on matters of public concern at a public place adjacent to a public street."

Such speech, he wrote, "cannot be restricted simply because it is upsetting or arouses contempt." The majority also held that the funeral site did not justify the charge that the Westboro group had violated the family's privacy, given that the protest was only barely visible to the family.

Interestingly, Roberts referred to a 1995 Supreme Court decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston to support his argument. In that decision, the Supreme Court said a St. Patrick's Day Parade organizer had the right to exclude an openly gay contingent from the annual event, which took place on a public street. But in that case, the high court ruled that the parade organizer was a private party and that the parade was, in essence, the organizer's speech.

The conflict began in March 2006 when the family of Matthew Snyder, a Marine killed in Iraq, held a funeral service him in Maryland. Later that day, they saw television 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." Phelps had also posted his comments on his website.

"Westboro believes that America is morally flawed," wrote Roberts, adding, "many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials."

Justice Stephen Breyer concurred with the decision but added his own statement saying he felt the opinion did not address other important aspects of the case—such as the fact that the protests were broadcast on television and that the messages were also posted on the Internet.

Alito said he does not believe the First Amendment is "a license for the vicious verbal assault that occurred in this case." Alito said Westboro members have "almost limitless opportunities to express their views" but that that doesn't mean "they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate."

Alito said he believes Westboro has "devised a strategy" to maximize publicity for their messages by targeting specific funerals and sending out press releases to "ensure that their protests will attract public attention."

"This strategy works," he said, "because it is expected that respondents' verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief." He pointed to the Westboro Church's recent protests around the funeral for a 9-year-old girl in the Tucson shootings this year and around the funerals for five Amish girls killed by a gunman in 2006.

In Matthew Snyder's case, said Alito, the Westboro's picket signs "would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs," he noted. "A bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual." He noted that the church members followed up with statements on their website, saying that Matthew's parents "sent him to fight for the United States of Sodom."

Such comments, said Alito, go "far beyond commentary on matters of public concern." He said he would allow the Snyder family to recover damages for the intentional infliction of emotional distress caused by speech on a matter of private concern."

"In order to have a society in which public issues can be openly and vigorously debated," said Alito. "It is not necessary to allow the brutalization of innocent victims like petitioner."

2011 by Keen News Service. All rights reserved.

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