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Westboro ruling no surprise to lawyers

A day before the fifth anniversary of Marine Lance Cpl. Matthew Snyder’s death in Iraq, the U.S. Supreme Court ruled that a Kansas congregation had the right to picket his Westminster funeral.

The court, in an 8-1 vote on Wednesday, upheld a 4th U.S. Circuit Court of Appeals ruling overturning a $5 million judgment against the Westboro Baptist Church and in favor of Albert Snyder, Matthew’s father. Chief Justice John G. Roberts Jr., writing for the majority, acknowledged Westboro’s protest contributed to Albert Snyder’s “already incalculable grief” but that the church’s speech was protected under the First Amendment.

“Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible,” Roberts wrote. “But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”

Local constitutional scholars and First Amendment lawyers said the court’s ruling was not surprising.

“Grief should not cause us to abandon our core First Amendment principles,” said David Rocah, staff attorney for the American Civil Liberties Union of Maryland, which filed a brief along with the national ACLU on behalf of Westboro.

Shirley Phelps-Roper, a spokeswoman for the Topeka-based church, was flying back from Washington, D.C. — where she was speaking to law enforcement officers about the First Amendment at the FBI’s National Academy — when she received news of the court’s ruling.

“We floated home from Kansas City,” said Phelps-Roper, who also was a defendant in the case.

Phelps-Roper’s father, Fred Phelps, is the leader of Westboro, whose members say they are following their religious beliefs by spreading the message that soldiers’ deaths are due to the nation’s tolerance of homosexuality. They have stood outside funerals of soldiers across the country — including at Matthew Snyder’s funeral on March 10, 2006 — carrying signs that read “Thank God for dead soldiers” and “God hates fags.”

“This military hates the First Amendment and they will do anything to undermine it and dispose of it,” Phelps-Roper said.

Several veterans who are lawyers disagreed.

“You fight for the speech that you hate and the speech that you love,” said Dee Drummond, an associate at Rollins, Smalkin, Richards & Mackie LLC in Baltimore, who served as a military lawyer in Afghanistan for 15 months and is a member of the U.S. Army Reserves.

“I can’t express enough disappointment that people would picket a funeral for a military veteran who died for his country, but they have a right to do that,” added Thomas D. Murphy of Murphy & Mood PC in Rockville, who received a Purple Heart in Vietnam and is the father of three veterans.

Snyder saw what was written on protesters’ signs while watching the news later that day and came across a post on the church’s website several weeks after the funeral attacking Matthew’s parents for how they raised their son. Snyder’s lawsuit, filed in U.S. District Court in Baltimore, accused the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, an amount reduced to $5 million by Judge Richard D. Bennett.

Snyder, who now lives in York, Pa., told reporters at a press conference there Wednesday night it was possible he would have to pay the Phelpses around $100,000 in legal fees they are seeking since he lost the lawsuit.

“My first thought was, eight justices don’t have the common sense God gave a goat,” he said. “We found out today we can no longer bury our dead in this country with dignity.”

Roberts, in the court’s majority opinion, noted the picketing was done under police supervision 1,000 feet from the church and featured no shouting, profanity or violence.

“Simply put, the church members had the right to be where they were,” Roberts wrote. “ … [W]hat Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.”

ACLU’s Rocah cited the latter point as a key to the ruling.

“‘Outrageousness’ as a legal standard to punish free speech is dangerous,” he said.

In a strongly worded dissent, Justice Samuel A. Alito Jr. repeatedly called Westboro’s actions a “vicious” assault that “brutalized” Albert Snyder. Alito argued the church moved beyond commenting on public matters and attacked Matthew Snyder as a private citizen because he was Catholic and a soldier.

“When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery,” Alito wrote. “ … I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected.”

Mark Graber, a constitutional law professor at the University of Maryland School of Law, said Alito “simply read the facts differently” than the majority as to Westboro’s target.

Forty-three states and the federal government have laws restricting funeral picketing, and Roberts noted previous court decisions have upheld “reasonable time, place and manner restrictions.” Maryland’s was passed after Snyder’s lawsuit was filed. David A. Burkhouse, who served on active duty in the Army from 1995 to 1999, wrote in an e-mail that the restrictions are necessary.

“Unfortunately, the Supreme Court’s decision does nothing to compensate Lance Corporal Snyder’s family for the desecration of his burial,” said Burkhouse, an associate with Hodes, Pessin & Katz P.A. in Columbia. “The Supreme Court may release the Westboro Baptist Church from liability but this does nothing to restore the decency that the Westboro Baptist Church lost when it selected Lance Corporal Snyder’s burial as a venue for its protest.”

The Associated Press contributed to this article.

One comment

  1. God doesn’t hate anyone, but if he did it would be the protestors. They are heartless, evil people along with the lawyers that defended them. It is sickening that our government is allowing our fallen soldiers to be treated so disrespectfully. The least they could do is raise the allowable distance from the funerals to at least 5,000 feet so the mourners may not even be aware of the dispicable act these horrible people are doing.

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