The Supreme Court heard arguments yesterday in a controversial First Amendment case regarding protesting military funerals. Members of the Westboro Baptist Church in Kansas are infamous for protesting military funerals across the nation, displaying signs that imply soldiers’ deaths are God’s punishment on the nation for things such as accepting homosexuality, laws allowing abortion and rising divorce rates.
One recent protest took place for a soldier and 2008 graduate of the College of William and Mary in Williamsburg, Va. As has become more and more common at the WBC’s protests, locals showed up to counter-protest, in this instance over 100 people.
For this case in particular, members of the church protested at the Maryland funeral of Lance Cpl. Matthew Snyder, who died in Iraq. Snyder’s father, Albert Snyder, sued the church for emotional distress and was awarded $5 million before a federal appeals court reversed the decision in favor of free speech, no matter how offensive.
As Mike Sacks reports over at First One @ One First, the press and general public seeking entrance to yesterday’s oral arguments in the case, Snyder v. Phelps, was larger than any case last term, including Citizens United.
The upshot, however, is that those cases yielded landmark decisions, while Snyder will bring nothing of the sort. If there’s any lesson at all to be gained from this morning’s oral argument, it’s a reassertion of the truism that bad facts–or, in this case, exceedingly unique facts–make bad law.
As many reports indicated, the Court had a difficult time parsing the case’s facts and emotional impact. It was made exceptionally difficult in that both sides were well-prepared with legal arguments.
Lyle Denniston at SCOTUSblog asks “Should we — and can we — set aside our emotional reaction? If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a ‘funeral exception’ to the right to speak out in public in outrageous and hurtful ways.”
Such an exception would change be a major change to the court’s list of exceptions to free speech established in 1942’s Chaplinsky v. New Hampshire.
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.
Although some facts threw doubts on the Snyder camp’s claims, the court seemed split between protecting free speech and sympathizing with the Snyders. The justices spent a while on hypotheticals when question the church’s lawyer, Margie Phelps (the daughter of Fred Phelp, WBC’s pastor and the case’s respondent), including this gem.
Alito: All right. Well, Justice Kagan gave you one example. Let me give you another example along the same lines. Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED. And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home. And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do? Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it. And on and on. Now, is that protected by the First Amendment? There is no false statement involved and it’s purely speech.
Phelps: Right. And — and it may give rise to some fighting words claim, depending on the proximity and the context. And I would have to know what –
Alito: Well, it’s an elderly person. She’s really probably not in — in a position to punch this person in the nose.
Scalia: And she’s a Quaker, too.
The court transcript here notes laughter, and after hemming and hawing for a bit Phelps reluctantly said it was not protected speech as they may constitute “fighting” words.
SCOTUSblog’s Dennison noted that, while many justices seemed undecided on the matter, Stephen Breyer spent some time ruminating on possible middle-of-the-road solutions.
By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lane Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer. The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event. As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”
NPR’s Nina Totenberg said that it appears “that some justices who just months ago expanded the right of free speech to allow corporations to spend unlimited amounts in candidate elections are looking for a way to limit the rights of picketers at funerals.”
Mike Sacks at First One @ One First wrote that the court may in the end suck it up and side with the Westboro Baptist Church.
Yet for all the doubt the justices expressed towards the WBC’s claims of constitutional protection, Snyder’s argument simply could not carry the day. Challenged by Justice Kagan to articulate a standard for how to determine which protests “glomming to a private funeral” should or should not fall outside of the First Amendment, Summers could articulate no governing principle. Ultimately, it seemed, Snyder sought not a general rule of law, but rather a Constitutional carve-out for his own grief. Such personalized positions are not the stuff of Supreme Court precedent.
Slate’s Dahlia Lithwick agreed that the court faces a choice between the law and the facts.
The headline writers are going to say that the justices “struggled” with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that’s why we needed a First Amendment in the first place.
On the other hand, she wasn’t pulling any punches when it came to her own opinion.
Oh, and just for the record: What I hate is tripping over a child holding a sign that reads “God Hates You” as I am trying to get to oral argument at the Supreme Court. There is a special charcoal briquette in hell for parents who teach kids to think that way.
The court is not expected to release its ruling for several months. You can read the 56-page transcript of the argument here.