High court weighs privacy and offensive speech rights

The U.S. Supreme Court explored the constitutional limits of offensive speech Wednesday during oral arguments regarding a highly-charged controversy that pits the privacy rights of a fallen Marine’s bereaved father against the First Amendment rights of anti-gay protestors to expound their message at military funerals.

During the hour-long legal debate in the case involving a small Kansas church that blames American casualties in recent wars on the country’s acceptance of homosexuality, many of the justices struggled to reconcile well-established First Amendment jurisprudence that protects even the vilest speech and recognizes the importance of robust debate on public issues with private individuals’ rights to be let alone.

“So public speech, speech on a public matter, if directed to a private person, should be treated differently under the law? . . . Is that what your position is?,” Justice Sonia Sotomayor asked.

The emotional issue arose more than four years ago, when Fred Phelps Sr. and other members of Westboro Baptist Church in Topeka, Kan., — primarily members of Phelps’ family — carried picket signs with messages such as “Fag Troops” and “God Hates You” outside the funeral of Lance Cpl. Matthew Snyder at a Catholic church in Westminster, Md. Snyder was also the subject of an inflammatory diatribe that Phelps and his followers penned and posted online to reiterate their condemnation of gays and highlight the consequences of God’s wrath toward tolerant Americans.

Although the protestors complied with local regulations governing picketing and Snyder’s father, Albert Snyder, conceded that he did not see any of the protestors’ signs until he watched a television broadcast later that afternoon, he sued the church for intrusion upon seclusion and intentional infliction of emotional distress stemming from the protest, as well as the online missive. A Maryland jury awarded him $10 million in damages, a figure the trial court reduced by half.

The U.S. Court of Appeals in Richmond (4th Cir.) reversed the judgment, holding that state tort liability cannot attach to an opinion, and the church protesters’ tone and the content of their speech “negate[d] any impression that it was the source of any actual facts.” Additionally, the appellate court noted, the speech involved a matter of public concern.

“A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts,” it wrote.

The Reporters Committee for Freedom of the Press and 21 media organizations filed a friend-of-the-court brief asking the Supreme Court to affirm the Fourth Circuit ruling, arguing that, while most people would consider the funeral protests to be “inexplicable and hateful,” the court would not be able to establish a workable standard that would both protect speech interests yet exclude the Westboro protesters from First Amendment protection — a difficulty the justices acknowledged.

If a particular defendant “in a cause [of] trying to demonstrate how awful the war is,” made an outrageous statement that was intended to and did in fact inflict serious emotional suffering, “the First Amendment might not leave this alone,” Justice Stephen Breyer said. “But if it’s not going to leave this alone, there’s where we need a rule, or we need an approach or we need something to tell us how the First Amendment in that instance will begin to … force a balancing.”

Phelps’ daughter, Margie Phelps, a lawyer who represented the Westboro protestors, eschewed the notion of any balancing test when the speech involves matters that inform the public dialogue — a dialogue, she argued, that Albert Snyder entered when he told a The (Baltimore) Sun reporter covering his son’s death that he “want[ed] answers” about when “this senseless war [is] going to end.”

Snyder’s death became a matter of public concern subject to First Amendment protection when his father “proceeded to repeat that question in the public airwaves repeatedly [and] then a little church where the servants of God are found say, ‘we have an answer to your question,’” she said.

Several justices struggled with the notion that commenting on a child’s war-related death or purchasing an obituary in a hometown newspaper would rise to a level of public discourse sufficient enough to expose that private individual to personal attack without any remedy — a position in which Albert Snyder finds himself, his attorney, Sean Summers, told the court.

Throughout the argument, Summers insisted that his client’s son was the target of personal assaults that disrupted his funeral, rendering the protestors’ speech unprotected.

“What we are talking about is a private funeral,” he said. “I would hope that the First Amendment wasn’t enacted to allow people to disrupt and harass people at someone else’s private funeral.”

Yet, as Justice Ruth Bader Ginsburg reminded Summers, the signs the protestors carried at Snyder’s funeral were the same ones they hoisted at a protest they staged at the state capitol in Annapolis the very same day, an indication that the “You” included on some of them did not target Snyder personally but rather “the whole rotten society.”

Ginsburg also emphasized and repeatedly teased from Summers an acknowledgement that the protestors complied with all local ordinances and discontinued their protests shortly after the funeral began.

"[Do] we have other instances where conduct is lawful, meets all the terms of the statute that's meant to govern protests at funerals, and yet there is an award of damages permitted?,” she asked.

“Justice Ginsburg, I am not aware of any case,” Summers eventually responded.

A decision is expected in the case some time this term, which ends next June.