TIME MAGAZINE/CNN Wednesday, Oct. 06, 2010 Inside the Supreme Court's Free-Speech Showdown
By Sean Gregory / Washington
"Is this a joke?" a befuddled young woman asked as she
stood outside the Supreme Court on the morning of
Oct. 6. She was staring at members of the Kansasbased Westboro Baptist Church, who were wearing
sweatshirts emblazoned with the church's website,
godhatesfags.com. A 9-year-old boy, a grandson of
Westboro founder Fred Phelps, stood as tall as his tiny
body allowed, holding a "God Hates You" sign. But
these churchgoers, who believe all Americans are hellbound because of the country's tolerance for gays,
weren't just shouting about the evils of homosexuality.
They were also demeaning Jews — because Jews killed
Jesus, don't you know? — and calling Catholic churches
dog kennels because, as one Westboro member
explained, priests are gay and molest children.
Westboro members have carried out hate-filled
demonstrations like this one every day for the past 19
years, staging their protests outside places like high
school plays and military funerals. On Oct. 6, they
assembled in front of the Supreme Court as it prepared
to hear oral arguments in the case of Snyder v. Phelps,
which pits the grieving father of a Marine killed in Iraq
against Westboro, a 70-member congregation in
Topeka that consists almost entirely of Fred Phelps'
extended family.
In March 2006, seven Westboro members picketed the
Maryland funeral of Lance Corporal Matthew Snyder,
who died when his humvee crashed in Iraq. The
Westboro protesters flew more than 1,000 miles so
they could hold signs with messages like "Thank God
for Dead Soldiers," "You're Going to Hell" and "Thank
God for IEDs." Matthew's father Albert Snyder, citing
the physical and mental trauma that resulted from
being confronted by the group at his only son's funeral,
filed a lawsuit against Westboro. A jury found the
church liable for intentional infliction of emotional
distress, invasion of privacy and civil conspiracy, and
awarded Albert $10.9 million in damages (which the
trial judge later reduced to $5 million). The Fourth
Circuit Court of Appeals, however, reversed the verdict,
ruling that the First Amendment protected Westboro's
speech.
The emotionally charged case, which raises questions
about when public commentary becomes personal
harassment and whether there should be limits on
freedom of speech at the funerals of private citizens,
has received more attention than any other before the
Supreme Court this term. The line to get one of the
coveted seats inside the court that are reserved for the
public snaked around the block toward Independence
Avenue. "I got a golden ticket," bragged David
Overhuls, a second-year student at Georgetown Law
School who had camped out overnight for the hearing;
when he arrived at 10 p.m., about 40 people were
already waiting in line. Some had arrived on Monday,
Oct. 4.
In the run-up to the oral arguments, eager college kids
and law students argued over the details of the case
with several members of the Phelps family (the 9-yearold not included). The discourse was civil — for the
most part. "Appellate courts get s____ wrong all the
time," Overhuls shouted during one of the more heated
exchanges. When one of the Phelpses paused to check
a text message, a student mocked him, saying, "God
hates cell phones."
Meanwhile, Sam Garrett, a freshman at George
Washington, stripped down to his underwear and held
a sign of his own: "Fred Phelps Wishes He Were Hot like
Me." Garrett, who is gay, sashayed over to where the
Phelpses were assembled, to the delight of the youthful
crowd.
Inside the courtroom, it didn't take long for the Justices
to start picking apart the arguments. "We are talking
about a funeral," Albert Snyder's lawyer Sean Summers
began in his opening remarks. "If context is ever going
to matter, it has to matter in the context of a funeral."
Then Justice Antonin Scalia interrupted, asking, "Are
we just talking about a funeral? That's one of the
problems I have with the case." Legal analysts had
predicted that some of the facts surrounding the case
would give Scalia trouble. They were spot-on. The
Justice pointed out that Albert based his emotionaldistress claim in part on offensive words that Westboro
published about the Snyder family on the Internet
about a month after the funeral. "What does that have
to do with a funeral?" Scalia asked.
Justice Ruth Bader Ginsburg challenged Albert's claim
of invasion of privacy. She pointed out that even under
Maryland's funeral-picketing statute, which was passed
after Matthew's funeral, the Phelpses weren't breaking
any laws. They had checked with police on how far
away from the church they should stand, and they left
around the time the funeral began. Scalia followed up
by noting that the Snyder family had rerouted the
funeral procession to avoid seeing the protesters. "Is
that the extent of the disruption?" Scalia asked
incredulously. Summers responded by saying that since
Westboro "took away the peaceful experience" of a
private figure, the rerouting had invaded Albert's
privacy.
Later, however, Scalia challenged Fred Phelps'
daughter Margie Phelps, an attorney representing
Westboro before the court. The Justice questioned
whether Westboro's hate speech should qualify as
"fighting words," which are not protected by the First
Amendment, and wondered why Albert shouldn't be
entitled to an emotional-distress claim, since he had
suffered physical injury. (At the trial, Albert's doctors
testified that the stress caused by Westboro at his son's
funeral had worsened his diabetes.) (Comment on this
story.)
But it was Ginsburg who asked Margie perhaps the
biggest zinger of the day: "Why should the First
Amendment tolerate exploiting this bereaved family
when you have so many other forums for getting across
your message?" Ginsburg noted that the same day the
Phelpses picketed Matthew's funeral, they had also
protested at the state capitol in Annapolis. speech.)
During the arguments, Margie appeared more
confident, and less stammering, than her opponent.
But she seemed to bother the Justices by insisting that
Albert was a public figure and thus a less-protected
target of offensive speech. Albert had attained public
status, Margie argued, since he spoke to the media
about Matthew's death before the funeral and since he
published the time and location of the service in local
newspapers. It was a strange strategy, particularly since
the appellate court had ruled that Westboro's speech
received First Amendment protection — regardless of
whether it was directed toward a public or private
figure — as it was hyperbolic and couldn't be proved
false.
A few Justices indicated that they might want to take
on the larger First Amendment questions that stem
from Snyder v. Phelps. For example, after establishing
that Albert had seen the offensive content of the signs
on television and the Internet, rather than during the
funeral, Justice Stephen Breyer raised two questions.
"One is, Under what circumstances can a group of
people broadcast on television something about a
private individual that's very obnoxious?" he said. "And
the second is, To what extent can they put that on the
Internet, where the victim is likely to see it? Now, those
are the two questions that I am very bothered about. I
don't know what the rules ought to be there." These
questions may help explain why so many news
organizations signed an amicus brief supporting
Westboro's right to free speech. Was Breyer suggesting
that the media could be complicit for having broadcast
the hate speech?
QUESTIONS
1. Who is the petitioner in the case? Who is the respondent?
2. In your opinion, what might be the important constitutional question at stake?
3. Identify two interesting points raised by the Supreme Court justices. Comment.
PART II: Snyder v. Phelps
Consider these precedent cases (stare decisis). Indicate whether the case can be use to support the petitioner,
the respondent, or both.
PRECEDENT CASE
Schenck v. United States (1919)
This case gave birth to the “clear
and present danger” test
In many places and in ordinary
times, the Defendants in saying all
that was said in the leaflets would
have been within their
constitutional rights. However, the
character of every act depends on
the circumstances in which it is
done. The question in every case is
whether the words are used in such
circumstances and are of such a
nature as to create a clear and
present danger that they will bring
about the substantive evils that
Congress has a right to protect.
When a nation is at war, many
things that might be said in a time
of peace are such a hindrance to its
effort that their utterance will not
be endured so long as men fight
and that no Court could regard
them as protected by any
constitutional right.
Cox v. Louisiana,
(1965).
It is axiomatic that “[t]he rights of
free speech while fundamental in
our democratic society, still do not
mean that everyone with opinions
or beliefsto express may address a
group at any public place and at
any time. The constitutional
guarantee of liberty implies the
existence of an organized society
maintaining public order, without
which liberty itself would be lost in
the excesses of anarchy.”
Thus, even in a
public forum, expressions of
opinion can be limited by
“reasonable restrictions on the
HOW COULD THIS HELP THE HOW COULD THIS HELP THE
PETITIONER?
RESPONDENT?
time, place, or manner of [the]
protected speech, provided the
restrictions are
ustified without reference to the
content of the regulated
speech, are narrowly tailored to
serve significant governmental
interests, and leave open
ample alternative channels for
communication of the
information.”
National Socialist Party of
America v. Village of Skokie
(1977)
After being asked for a large
insurance bond to march in
Chicago's southwest side, a neoNazi group led by Frank Collin,
above, said it would march instead
in a Jewish suburb where many
Holocaust survivors lived. The case
made its way to the Supreme Court,
where the justices upheld the right
of the NSPA to assemble while
displaying swastikas.
Hustler Magazine v. Falwell
(1988)
In a 1983 issue of the pornographic
magazine published by Larry Flynt,
above, a parody described a
drunken sexual encounter in an
outhouse between the famous
evangelist Reverend Jerry Falwell
and his mother. Falwell sued and
was awarded $200,000 in damages
by a lower court, but that decision
was overturned in an 8-0 Supreme
Court ruling that said that the
parody was within the law, because
no reasonable person would have
interpreted it to contain factual
claims.
Frisby v. Shultz (1988)
Did a Brookfield, Wisconsin
ordinance that prohibits picketing
in front of residences in the town
violate the Constiution?. The Court
decided that the First Amendment
of the Constitution permits the
government to prohibit offensive
speech as intrusive when the
captive audience cannot avoid the
objectionable speech. The target of
the focused picketing, banned by
the ordinance is just such a captive,
figuratively, and sometimes
literally trapped into their home by
the protesters. These individuals
who object to the speech have no
means of avoiding this unwanted
speech.
R.A.V. v. City of St. Paul (1992)
After a group of teenagers burned a
crude cross on the lawn of an
African American family in St.
Paul, Minn., one of them, (whose
full name was not released because
he was a juvenile at the time) was
convicted under a city ordinance
aimed at bias-motivated crime. In a
unanimous decision, the Supreme
Court struck down the St. Paul
ordinance, thereby overturning the
conviction of the teenager.
After looking the facts of this case, and considering the precedent cases, how would you decide on this
case, and why?