A skeptical, curious, and cautious Supreme Court took up a weighty free speech case Wednesday as they heard oral arguments in Snyder v. Phelps. The issue being debated was whether the First Amendment protects protesters at a funeral from liability for intentionally inflicting emotional harm on the deceased’s grieving family.
Albert Snyder, the father of a dead Marine, is asking the Supreme Court to uphold a nearly $11 million jury verdict (reduced to $5 million by the courts) for intentional infliction of emotional distress and invasion of privacy through protests surrounding his son’s funeral. Westboro Baptist Church, led by Pastor Fred Phelps, contended that their constitutionally protected protests and speech at the funeral were not directly targeted at Snyder’s son, nor was their speech outrageous enough to cause emotional harm. This small church in Kansas has a reputation for conducting similar protests around the country. The slogans on these signs included “God hates fags”; “Thank God for Dead Soldiers”; “Semper Fi fags”; and “You’re going to hell.” Phelps also posted related internet content to the Church’s website directly naming and targeting Snyder’s son.
Protestors were plentiful on the Supreme Court steps beginning early Wednesday morning. Members of the Westboro Baptist Church could be seen holding many of the same war protest signs at issue in this case. The courtroom was at capacity, as this case has drawn attention from the public and scholars alike. The skeptical Justices struggled today with the notion of further restricting free speech on a public matter when targeted toward private individuals.
Newcomer to the Court, Justice Elena Kagen, had a lot to say during her third day of oral arguments. Her first question asked what qualifies as “outrageousness in the nature of political and social discourse.” In her questioning, Justice Kagen asked for a Federal Court case from Snyder’s counsel, Sean E. Summers, to illustrate why a simple law prohibiting such protest within a certain distance would not be sufficient. Although unable to cite a case, Summers fought back by stating that such a hypothetical law would not prevent all harm and that without damages available, there would be no real incentive to curb such harmful speech and disruptive behavior.
Justice Alito questioned Summers about the videos posted online by the Church which specifically named Snyder’s dead son. Alito asked how far the Church could go with these videos. This led Justice Breyer to give Summers a series of leading questions about whether we can put anything on television or the Internet. “Have I said enough to get you talking,” quipped Breyer to nervous laughter in the courtroom. Summers relied on the Hustler Magazine versus Jerry Falwell case to illustrate the boundary of outrageous speech.
The famous Hustler Magazine versus Jerry Falwell Supreme Court case laid out the groundwork for today’s arguments. It held that there is free speech protection as to parody, made through outrageous (false) statements against a public figure. This case was made famous by the movie, “The People vs. Larry Flynt.” Legally, the Court was struggling with whether this protection extended to private individuals who lacked the fame and notoriety of Jerry Falwell. Justice Scalia was particularly concerned with the differences between public and private figures, asking if counsel agreed that they should be treated differently under the law. Summers agreed but Scalia then asked, “how do we treat it differently?”
Fred Phelps was represented by his daughter, Margie Phelps, who presented a calculated and confident argument to the Justices. Phelps was questioned by Justices Samuel Alito and Sonia Sotomayor as to whether the Snyder family was a captive audience at the funeral. The Justices also inquired as to whether the Church’s behavior was confrontational. Phelps was bombarded with hypothetical questions from the Justices, going as far as to reference an elderly grandmother on a bus who could not fight back. “She’s a Quaker too,” said Justice Alito, to a room full of laughter. Phelps defended her position that confrontational “fighting words” or stalking would not be protected by the First Amendment, indicating that the line is already established by past Supreme Court cases.
“Excellent” is how a confident Phelps described today’s arguments before the Court. She continued, “All the right questions. All the right answers. I think it’s clear how they are going to rule after this.” Westboro Baptist Church has the reluctant support of many free speech advocacy groups who support the First Amendment in this case but do not agree with the message of the Church.
“You don’t know from my seat” said a skeptical Summers afterwards. Summers continued, “I really liked the line of questioning about the grandmother.” Phelps also indicated that he agreed with the line of questioning about the internet content, stating, “it certainly shows that the speech was targeted,” but wished that more time was spent on that subject before being bombarded with multiple questions at once from different Justices. Snyder is supported by the attorneys general of 48 states and the District of Columbia, along with a bipartisan mix of nearly half of the Senate.
Justice Kagen’s final questions indicated that she was hesitant to allow “exploitation of a funeral for the purposes of gaining publicity only.” Kagen noted that the Westboro Baptist Church had a stage for their protests earlier in the day at the Capitol and in Annapolis, MD. Justice Ruth Bader Ginsburg, perhaps the most hesitant that the Snyder family could actually sue in this case, did say that this case was all about “exploiting a private family’s grief.” While the Supreme Court now has a chance to change our First Amendment rights with this case, it is more likely that the forthcoming opinion will be more specific to Snyder’s case only, as not to upset well-protected free speech rights in too many other situations.
Rob Kimmer is a legal journalist, scholar, and practicing attorney.
