Fred Phelps

Fred Phelps’ followers say their hate-filled messages that “God Hates Fags,” “Semper Fi fags,” and “Thank God for dead soldiers” constitute a contribution to public discourse—or, as their attorney Margie Phelps put it, “speech on public issues.”

But, in front of the U.S. Supreme Court Wednesday, October 6, attorney Sean Summers argued that these messages, when conveyed outside the funeral of a fallen soldier and repeated on the Phelps’ godhatesfags website, inflict an injury for which the group should be made liable.

The case, Snyder v. Phelps, seeks to undo a ruling in favor of Phelps in the conservative 4th Circuit U.S. Court of Appeals. A three-judge panel for that circuit ruled last year that Phelps’ anti-gay messages—on placards and a website—are protected 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, Matthew’s father, Albert, saw 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.”

The Westboro group has staged similar protests at the funerals of other servicemembers –so many, in fact, that Congress passed the Respect for America’s Fallen Heroes Act in May 2006 to prohibit protests within 300 feet of any federal military cemetery within 60 minutes of a funeral.

But outside Snyder’s funeral, the Phelps clan reportedly positioned themselves 1,000 feet from the church where the funeral service was taking place. And they broke no law.

The First Amendment right to freedom of expression protects the right of all citizens to express their views, however objectionable those views—or simple remarks—may be. But the high court has also, over the years, identified exceptions. For instance, a citizen cannot go into a crowded theater and shout, “Fire.” One cannot make a false statement about another person that causes injury to that person. And one cannot utter “fighting words,” or words so caustic that would be expected to “incite an immediate breach of the peace.”

The question the court struggled with Wednesday is whether a new exception should be made. Should a citizen be prohibited from making “outrageous” and hostile statements in the name of public discourse outside a private funeral and then on a website that no reasonable person would consider true but which inflict emotional distress on the family of the deceased.

Margie Phelps, representing her father and the Westboro Baptist Church, said the group’s actions outside the funeral of Matthew Snyder were within the law and constituted “people from a church delivering a religious viewpoint, commenting” on “public issues” such as “dying soldiers” and “the morals of the nation….”

Justice Ruth Bader Ginsburg cut her off, asking why the Phelps protesters needed to “exploit a private family’s grief” to participate in this discussion, “when you have so many other forums for getting across your message?”

Phelps said “there are some limits on what public places you can go to deliver words as part of a public debate.” But “If you stay within those bounds,” she said, ”this notion of exploiting . . . has no definition in a principle of law that would guide people as to when they could or could not.”

None of the justices seemed to be buying Phelps’ argument (and all participated vigorously in the case, except for Justice Clarence Thomas, who almost never does).

Justice Antonin Scalia said doesn’t see a difference between an “outrageous statement” and a “fighting word.”

Justice Stephen Breyer said, “if you have an instance where the defendant has said on television or on the Internet something…you show that it was intended to and did inflict serious emotional suffering, you show that any reasonable person would have known that likelihood, and then the defendant says: ‘Yes, I did that, but in a cause, in a cause. And now—in a cause that we are trying to demonstrate how awful the war is.’

“At that point,” said Breyer, “I think the First Amendment might not leave this alone.”

Sean Summers, the attorney for the Snyders, compared what the Phelps group does to someone putting on a web site that a particular person has AIDS.

“Whether it’s true or not,” said Summers, “essentially, at some point in time, it might rise to the level of an intentional infliction of emotional distress.”

Important to the discussion was whether Matthew Snyder should be considered a private person or a public figure. That’s because, in a 1988 U.S. Supreme Court decision in Hustler v. Falwell, the court ruled that a public figure may not recover damages for the intentional infliction of emotional pain without first showing that the speaker made the injurious and but obviously false remarks with “actual malice.” (Hustler had published a parody of evangelical preacher Jerry Falwell that portrayed him as having had an incestuous relationship with his mother.)

Summers said the Hustler rule does not apply when the victim is a private person. But Phelps’ attorney said Matthew Snyder’s father made his son into a public figure when he placed an obituary with a funeral notice in the local newspaper.

Justice Samuel Alito noted that racism is a public issue and asked whether that would give someone the right to target an African American on the street to berate them with anti-black remarks.
“I think the issue of race is a matter of public concern,” said Phelps. But she said that “approaching an individual up close and ‘in their grille’ to berate them gets you out of the zone of protection, and we would never do that.”

Many in the LGBT community would, of course, disagree. The Phelps family has been very confrontational with members of the LGBT community. As early as the 1993 National March on Washington for gay civil rights, a band of Phelps followers stood on the curb, holding up hate-filled signs, cursing, deriding, and spitting upon protesters. Long before they began picketing the funerals of servicemembers, they staged similar demonstrations near the funerals of people who died of AIDS. And they showed up with anti-gay signs outside the funeral of Matthew Shepard, the Wyoming gay student who was brutally murdered for being gay.

Gays were not mentioned once during Wednesday’s oral argument, though Justice Anthony Kennedy noted that Phelps’ argument could be used to justify targeting just about anyone.

“All of us in a pluralistic society have components to our identity,” said Kennedy. “We are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young. Any one of those things you could turn into a ‘public issue’ and follow a particular person around, making that person the target of your comments.”

No gay organization submitted a brief to the court concerning the case.