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Will God hate the Supreme Court next?

In the winner of this year's "which writ of cert will the Supreme Court take that shocks 'stina the most" contest, the SCOTUS blog reported this tidbit this morning</a>.
The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. This was one of three newly granted cases. The others test the constitutionality of background checks for workers who work for the government under contract, rather than as regular employees, and a case testing the right to sue in state court when a child is injured or dies after receiving a vaccine. All of the cases will come up for review in the Court’s next Term, opening Oct. 4.

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting. The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech. The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters.

In March four years ago, Marine Lance Corporal Matthew A. Snyder was killed while serving in Iraq. His family arranged for a private funeral, with Christian burial, at St. John’s Catholic Chruch in Westminster, Md. When word of the planned funeral appeared in the newspapers, the Rev. Fred W. Phelps, Sr., pastor of Westboro Baptist Church in Topeka, Kan., who has gained notoriety in recent years by staging protests at military funerals, decided to stage a demonstration at the Maryland funeral. In response to such protests, some 40 states have passed laws to regulate funeral demonstrations.

The Rev. Phelps’ church preaches a strongly anti-gay message, contending that God hates America because it tolerates homosexuality, particularly in the military services. The church also spreads its views through an online site, www.godhatesfags.com. When the Snyder funeral occurred, the Rev. Phelps, two of his daughters and four grandchildren staged a protest nearby. They carried signs with such messages as “God Hates the USA,” “America is doomed,” “Matt in hell,” “Semper fi fags,” and “Thank God for dead soldiers.” The demonstration violate no local laws, and was kept at police orders a distance from the church. After the funeral, the Rev. Phelps continued his protest over the Snyder funeral on his church’s website, accusing the Snyder family of having taught their son irreligious beliefs.

The soldier’s father, Albert Snyder, sued the Rev. Phelps, his daughters and the Westboro Church under Maryland state law, and won a $5 million verdict based on three claims: intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy. (The verdict included $2.9 million for compensatory damages and $2.1 million for punitive damages; the punitive award had been reduced from $8 million by the trial judge.) The Fourth Circuit Court overturned the verdict, concluding that the protesters’ speech was protected by the First Amendment because it was only a form of hyperbole, not an assertion of actual facts about the soldier or his family. While finding that the Phelps’ remarks were “utterly distasteful,” the Circuit Court said they involved matters of public concern, including the issue of homosexuality in the military and the political and moral conduct of the United States and its citizens.

In Albert Snyder’s appeal, his lawyers argued that the Supreme Court’s protection of speech about public issues, especially the Justices’ 1988 decision in Hustler Magazine v. Falwell, does not apply “to private individuals versus private individuals.” If it does apply, the petition said, “the victimized private individual is left without recourse.” The Circuit Court decision, it added, encourages private individuals to use hyperbolic language to gain constitutional protection “even if that language is targeted at another private individual at a private, religious funeral.”

Even if the Hustler decision does apply to the kind of remarks at issue, the petition asserted, the case also raises the issue of whether those who attend a funeral are like a “captive audience” and thus need protection against intruders who were not invited.
I assumed, like many, that this was an unfortunately cut-and-dried First Amendment issue that let the Phelps clan be as obnoxious as they wanna be because our country gives people the explicit right to be assholes.

I'm sure that oral arguments will be interesting, and I'm sure that the decision could also sport a few tidbits that will either piss people off or make them dance with glee (probably both at the same time). I'm just happy that they see a legitimate issue worth talking about with regard to the abuse of the First Amendment for harrassment purposes.