What the U.S. Supreme Court will do in deciding whose First Amendment rights trump whose may be the key question in oral arguments last week in the case known as Snyder vs. Phelps.
The case concerns a father, Albert Snyder of York, Pa., who became distraught because a group of congregants from the Westboro Baptist Church of Topeka, Kan., picketed the funeral of Snyder's son, Lance Cpl. Matthew Snyder, a U.S. Marine who was killed in Iraq in March 2006.
Holding signs and chanting slogans such as, "Semper Fi Fags," the group says American soldiers die in battle because the United States tolerates homosexuality.
Snyder's lawsuit against the church and its leader, Fred Phelps, claimed invasion of privacy and intentional infliction of emotional distress, but the 4th U.S. Court of Appeals ruled in favor of the church primarily on First Amendment grounds.
Sean E. Summers, Snyder's lawyer, set the emotional tone in the Supreme Court hearing by beginning his argument with, "We are talking about a funeral." This evocative statement sparked a series of questions by most of the justices that went all over the map of both First Amendment protections and tort law.
During Summers' argument, issues of defamation were brought up mixed in with questions about invasion of privacy. In the course of the presentation by Margie J. Phelps, the attorney for Fred Phelps and the church, Justice Antonin Scalia invoked First Amendment prohibitions against fighting words -- messages that evoke an immediate, violent response. Justice Elena Kagan posed hypothetical situations that brought in harassment issues. And Justice Samuel A. Alito referred to targeted picketing, which pertains to the concept of a captive audience in free speech issues. During Summers' rebuttal, Kagan looked to the content of the church's message and Scalia focused on the outrageous conduct factor necessary for an intentional infliction of emotional distress cause of action.
Justice Stephen Breyer focused on the invasion of privacy and intentional infliction of emotional distress issues. During Phelps's time before the justices, Breyer invited her to help find ways to let the tort exist but not interfere with any important public message the speech may include.
Breyer mused aloud, speaking of making such causes of action bench trials rather than jury undertakings because the First Amendment is involved; leaving it to the judge as the trier of fact to determine whether in a particular case it was reasonable for a defendant to think it was important to interfere with a plaintiff's emotional life; employing such a reasonableness standard to award no punitive damages and instead award only "ordinary" damages; and finally, removing protection from a defendant who had actual knowledge that his statement would cause the plaintiff emotional injury.
Chief Justice John G. Roberts questioned Phelps on whether she believed Snyder was a public figure since under the First Amendment, it is harder for the plaintiff to prove injury if he is a public figure. Phelps replied the group wouldn't have picketed the funeral had Snyder not put the matter of his son's death on the public airwaves.
Phelps's statement is questionable, considering the group has made a practice of picketing military funerals. For her statement to be true, it would have to be determined whether in each case the family of the fallen soldier went beyond the usual obituary notice, which Phelps conceded would not interject the matter into the public arena, to make the funeral a public matter.
The issue is important because at least some of the justices seem to think the plaintiff's private-or-public status is one of the points on which the case will turn.
Roberts repeatedly focused, joined once by Justice Anthony M. Kennedy, on questioning whether the church was simply using the tragic circumstances of a military funeral to achieve maximum publicity for its message.
He asked: "Does it make a difference … that Snyder was selected (for targeting by the church) not because of who he was, but because it was a way to get maximum publicity for your client's particular message?"
Phelps admitted: "The motive of the speaker (is) to get maximum exposure, which every public speaker pines for, looks for, and is entitled to."
Is Phelps's response eminently reasonable? Perhaps not: Friend-of-the-court briefs filed in support of Snyder by 49 attorneys general call Phelps's tactics "psychological terrorism." It remains to be seen if and to what extent the Supreme Court will carve into First Amendment protections on behalf of the sensibilities of mourners.
All this goes to the question of whether the First Amendment's right to freedom of expression will protect the Westboro Church, trumping Snyder's First Amendment right to peaceful assembly and freedom of religion (a family and loved ones mourning a deceased is commonly considered a sacred ritual), or vice versa.
It is difficult to predict which way the justices will go when they have calmed down: While they clearly were hostile to Margie Phelps, the Supreme Court traditionally has been reluctant to chip away at freedom of speech.