Free Speech or Harassment?

AMERICAN JUSTICE
USA TODAY ★ JANUARY 2011

By Andrew Lubin

"IF THE WESTBORO BAPTIST CHURCH had simply picketed LCPL Snyder’s funeral, this would perhaps be a First Amendment issue,” explains Craig Trebilcock, one of the two attorneys representing plaintiff Albert Snyder. “Instead, they subjected the Snyder
family to a reign of harassment prior to their son’s funeral to two weeks
afterwards—which changed the case from a Federal freedom of speech issue to one of harassment and conspiracy, which is instead a civil issue.”

The case of Snyder v. Phelps was heard Oct. 6, 2010, by the Supreme Court. Sean Summer represented Albert Snyder, father of Marine Lance Cpl. Matthew A. Snyder, while attorney Margie Phelps, daughter of defendant Frederick Phelps, spoke on behalf of Phelps and the Westboro Baptist Church. This is a contentious and increasingly emotion-driven case with almost weekly exposure. From picketing the funerals of Marines and soldiers killed in combat, the church sent pickets in December to Elizabeth Edwards’ funeral. In no case do they have any connections
to any of the people whose funerals they attend, but rather use the opportunity to promote their virulent anti-homosexual message.

The facts in Snyder v. Phelps are simple: LCPL Snyder, 20, died in March 2006 in a noncombat incident in Iraq’s Anbar Province. During his funeral, held on private ground in Westminster, Md., members of the Westboro Baptist Church of Topeka, Kan.,
picketed Snyder’s funeral with signs, banners, and invective—calling him a homosexual and claiming his death was God’s way of punishing the U.S. for condoning homosexuality.

In 2007, Snyder sued Westboro Baptist Church and its leaders contending they invaded his privacy and intentionally inflicted emotional distress. A jury awarded him $2,900,000 in compensatory damages and $8,000,000 in punitive damages in October 200, forcing the Westboro Church into filing for bankruptcy.

However, in September 2009, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., overturned the lower court’s verdict, with existing law allowing $16,510.80 in court costs to Phelps as the successful litigant. Two of the three judges found in favor of Westboro on the grounds that Westboro’s message was “sheer hyperbole” and therefore entitled to extra First Amendment protection due to the outrageousness of the message. Ironically, for ultra-conservative Westboro Baptist Church, the judges cited Hustler Magazine, Inc. v. Falwell (1988), in which the
Supreme Court’s unanimous 8-0 decision held the First Amendment’s free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them. Hustler’s parody of Jerry Falwell was deemed to be within the law because the Court found that reasonable people would not have interpreted the parody as factual, thus reversing a prior jury award to Falwell of $200,000.

While various legal specialists say the case is a test of the limits of free speech, an equal amount disagree. Similar demonstrations by Westboro Baptist Church members have prompted several states to establish limits on funeral protests and the attorneys general of 48 states filed a signed amicus brief in support of Snyder.
“People want to make this out as free speech,” Trebilcock notes, “but actually it’s about harassment and who is or is not a public figure. LCPL Snyder was a 20-year-old Marine from Maryland who died in Iraq; how does a church group from Kansas declare
him a ‘public figure’? Because they’re claiming that since the Snyder family ran an obituary in the local newspaper, that makes him fair game. They lost that argument in the first trial, however.” Moreover, “after picking LCPL Snyder’s obituary off the Internet, Phelps’ church issued a press release prior to the funeral designed to generate maximum press interest in their impending demonstration. Then they demonstrated, with as much venom and ugliness as possible, but they still weren’t done,” Trebilcock points out. “Some two weeks later, they posted ‘The Burden of Marine Lance Cpl. Matthew Snyder’ on their website, asserting that Snyder taught his son to be an adulterer, and that Matthew is in hell.”

Such concerted and repeated attacks on the Snyder family, Trebilcock explains, change the case. By legal standards, a conspiracy is a group of people banding together to commit an unlawful or illegal act; while the actions of the Westboro Church are not illegal, per se, they are unlawful. “LCPL Snyder was not a homosexual,” says Trebilcock, “and there is no First Amendment protection in deliberately slandering someone.” Those actions: intentional infliction of emotional
distress, intrusion on privacy, and civil conspiracy are why Snyder won his case
originally.

Opposing attorney Phelps has a completely different view. “It’s not about the
dead boys,” she contends, “although it is if they haven’t accepted the lord Jesus
Christ, but rather that since they’re in the military representing this godless
country, they’re condoning homosexuality.”

According to Westboro’s absolutist interpretation of the Bible, its 66 parishioners alone know the true path for America’s salvation, and that the U.S.’s casual acceptance of homosexuality will cause the country to collapse. They believe unequivocally that it is their responsibility to instruct the nation of same. Adds Phelps, “Appearing before the Supreme Court was extremely important for us. It gave us the opportunity to get our message out to the entire world.”

Legally, it seems the 4th U.S. Circuit decision is an imperfect decision in that it deals exclusively with the First Amendment rights of the Westboro Baptist Church while ignoring those of the Snyder family. While Westboro used the First Amendment to express its views, surely Albert Snyder had the same right. His son’s funeral, held in a Catholic church complete with a military color guard, clearly makes a statement, yet the 4th Circuit completely ignored Albert Snyder’s right to make one.

The decision in Snyder v. Phelps is expected to be announced prior to the Supreme Court’s June adjournment, and it surely will be best remembered as the case that either set—or expanded—the limits to unlimited free speech in the U.S.