Supreme Court struggles with free speech question

http://www.usatoday.com/news/washington/judicial/2010-10-06-supreme-court-snyder-phelps_N.htm

Supreme Court struggles with free speech question
10-6-10
Joan Biskupic

WASHINGTON — Supreme Court justices expressed empathy Wednesday for a father whose Marine Corps son was killed in Iraq and whose funeral was protested by fundamentalist pastor Fred Phelps and his anti-gay followers.

"This is a case about exploiting a private family's grief," Justice Ruth Bader Ginsburg said.

Yet the scope of the justices' questions during the hour-long session revealed the difficulty of the case and the reality that the court's previous rulings on free speech make it hard for individuals to claim they have been harmed by even horrific statements regarding public issues.

Despite their sympathy for the bereaved father, the justices, including Anthony Kennedy, often a key vote, clearly struggled with how to avoid a decision that encroaches on valid, although hateful, protest messages.

Justice Elena Kagan referred to the demonstrators as "taking advantage of a private funeral to express their views," yet noted they apparently adhered to ordinances about keeping their distance from the church. Ginsburg's questions suggested that state and local laws about where protesters may gather might sufficiently protect the sanctity of funerals.

As the justices heard arguments in the overflowing courtroom, the drama continued outside as Phelps' followers, who regularly travel the country to demonstrate at military funerals, protested in front of the marble-columned building.

Wednesday's case arose after Matthew Snyder, a Marine Corps lance corporal, was killed in Iraq in 2006. Fred Phelps and members of the Westboro Baptist Church — who comb media reports nationwide for news of military funerals — saw that Matthew would be memorialized in Westminster, Md. They protested near the Catholic church with signs that read, "Thank God for Dead Soldiers," "Fag Troops" and "Pope in Hell."

The Westboro congregation is made up mainly of Phelps' relatives. They preach that God hates gay people and protest what they say is a national tolerance for homosexuality, particularly under the military's "don't ask, don't tell" policy. (Snyder was not gay.)

Westboro members separately posted on the Web a video "epic" about their protests titled The Burden of Marine Lance Cpl. Matthew Snyder. The video indicated Albert Snyder and his ex-wife had "taught Matthew to defy his creator" and "raised him for the devil."

Lower court decisions

Snyder sued for damages based on the emotional distress Phelps and his followers caused him and won $5 million in a jury verdict. The trial judge said Snyder was not a "public figure," which diminished the free speech protections for Phelps and his followers.

The U.S. Court of Appeals for the 4th Circuit reversed the verdict, saying the question was not the private or public status of Snyder but rather the "type" of speech at issue.

"As utterly distasteful as these signs are," the 4th Circuit said, "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."

In his appeal Wednesday, Snyder's lawyer, Sean Summers, said, "Mr. Snyder simply wanted to bury his son in a private, dignified manner."

Summers said demonstrators did not go on church grounds and did not violate any local statutes, yet argued that they cannot claim the usual First Amendment protections for free speech because of the "private, targeted nature" of their harsh words against Snyder.

Justice Stephen Breyer drew out from Summers that Snyder had not seen the offensive signs until after the funeral on a television report.

Summers urged the justices not to rely fully on a 1988 case, Hustler Magazine v. Falwell, that said public figures and public officials may not recover damages for intentional infliction of emotional distress unless they prove the statement was deliberately false — a high standard to meet. The 1988 case involved Hustler magazine's parody of Jerry Falwell, a nationally known fundamentalist preacher, that suggested he lost his virginity to his mother in an outhouse. The court said the parody was not intended to assert the truth.

Summers said Snyder is not a public figure, as Falwell was.

Justice Kagan picked up on the Falwell precedent, noting the court had warned against jurors being allowed to impose liability based on their subjective views of "outrageousness." Summers responded that the context of a funeral should matter and separate it from Falwell.

Lawyer Margie Phelps represented her father and his Westboro followers. She said their protest met all the rules set by prior court decisions.

By turns passionate and pointed in her legal arguments, Phelps repeatedly referred to Westboro as "a little church" intent on preaching its message, which she characterized as, "Nation, hear this little church. If you want them to stop dying, stop sinning."

'Umbrella' of protection

Phelps insisted that any protesters who want to track down military families would be shielded by the First Amendment. She said that only if their activity rose to the level of "stalking, following, importuning" would an individual have a possible claim.

She told the justices that Albert Snyder's public comments about his son's death turned him into a public figure — a point that drew skepticism from many of the justices, including Samuel Alito.

Alito expressed doubts that bereaved family members could be turned into "public figures" by providing obituary information to a newspaper or expressing pride in a son's service.

Phelps stressed the wide "umbrella" of protection for "speech on public issues."

Justice Kennedy said he wanted help "in finding some line" between speech that merits protection and speech that does not.

Wednesday's case is one of the most closely watched of the term. The courtroom was filled, and spectators spilled into special seats set up in the alcoves. Outside, a handful of Fred Phelps' followers carried signs with messages such as "God Hates You."

Groups backing Snyder, including the Veterans of Foreign Wars and 48 states, stressed the need to protect the privacy of grieving military families. Free speech groups, such as the American Civil Liberties Union, say Phelps' horrific message is exactly the kind of unpopular, offensive speech the First Amendment was intended to protect.

A ruling in the case of Snyder v. Phelps is likely before next summer when the court recesses.

KEY CASES THAT DEALT WITH ISSUE

The case of Snyder v. Phelps tests First Amendment standards for liability in a dispute between two private parties. Here are some court touchstones involving the free speech of the news media and other private entities when challenged by individuals seeking damages for reputational, emotional or other injuries based on a defamatory report:

New York Times v. Sullivan, 1964: Finding the First Amendment protects the press from libel lawsuits by public officials unless the disputed report was published with "actual malice," which the court defined as a "deliberate falsehood" or one published in "reckless disregard of the truth."

Gertz v. Robert Welch, 1974: Ruling that private individuals do not have to prove such "actual malice" in their libel actions against a publication or other speaker. The court said private citizens lack public officials' ability to rebut allegations about their conduct and can meet a less demanding standard in state law to recover damages.

HustlerMagazine v. Falwell, 1988: Finding that public figures and public officials may not recover damages for intentional infliction of emotional distress without meeting the malice standard and proving that the statement was deliberately false or made with reckless disregard of its truth. The case involved Hustler magazine's parody of Jerry Falwell, a nationally known fundamentalist preacher, that suggested he lost his virginity to his mother in an outhouse; the court said the parody was not intended to assert the truth.

Milkovich v. Lorain Journal Co., 1990: Declaring that a publication's designation of a report as "opinion," rather than actual fact, does not exempt it from a libel action. The case involved a newspaper column that referred to a wrestling coach as a "liar" based on his testimony before a state athletics board.