WASHINGTON — Emboldened by last week’s Supreme Court decision, Westboro Baptist Church attorney Margie Phelps said she will challenge statutes all over the country that restrict picketing at funerals.
The court decided 8-1, with Justice Samuel Alito dissenting, that the First Amendment protected Westboro and the Phelps family from the lawsuit brought by Albert Snyder. The Phelpses picketed the 2006 Westminster, Md., funeral of Snyder’s son, which Snyder claims caused him emotional distress.
Phelps said it was ironic that the case that allowed her to argue in front of the nation’s highest court came out of Maryland.
“The one law that might be good, of all these laws across the land — wait for it — is Maryland,” she said. “I’m not totally throwing in the towel, and it was wrongly conceived, but it’s (only) 100 feet. So if there is one that’s got a fighting chance of staying good, that would be the one.”
Maryland’s picketing law requires protesters to remain at least 100 feet away from any funeral or funeral procession.
Phelps said she already has challenges pending against Nebraska and Missouri laws, which are more restrictive.
Snyder’s son, Marine Lance Cpl. Matthew Snyder, died at age 20 in a Humvee accident in Iraq. Westboro founder Fred Phelps and five of his followers used Snyder’s funeral as an opportunity to spread their anti-gay message with signs like “God Hates America” and “Fags Doom Nations.”
Matthew Snyder was not gay, but Westboro has picketed hundreds of military funerals across the nation, claiming that soldiers’ deaths are God’s vengeance for the country’s tolerance of homosexuality.
In response, 43 states and the federal government have enacted laws that restrict picketing at funerals — laws that Margie Phelps said are largely unconstitutional based on three legal principles she sees in the Supreme Court’s decision: Funeral attendees are not a “captive audience,” the Phelps’ protests amount to “public issue speech,” and that speech does not disrupt the funeral services.
“When all these laws get passed they pretend like there’s some basis under the captive audience doctrine to put us 500, 1,000, 1,500 feet away,” Phelps said. “That’s totally debunked in that (Supreme Court) opinion.”
Washington, D.C., lawyer Gene Schaerr disagreed.
Schaerr wrote an amicus brief in support of Snyder for the American Legion. He said the Supreme Court “went out of its way” to tell lower courts that the decision did not mean they should stop enforcing anti-picketing statutes, pointing to a passage from Chief Justice John Roberts’ majority opinion that reads, “To the extent these laws are content-neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.”
Schaerr said the court has long upheld reasonable restrictions on the time, place and manner of speech.
“I think they’re going to have a very difficult time getting [the statutes] overturned,” Schaerr said of the Phelpses. “What they had going for them here, obviously, was a jury verdict that directly targeted their speech and would have punished them for their speech. But when you’re dealing with a time, place and manner restriction, that’s a completely different animal. Those statutes don’t target any one person.”
“He lost; I won,” Margie Phelps said when told of Schaerr’s interpretation of the decision.
She also questioned his credentials on First Amendment issues.
“He doesn’t labor in this vineyard, by the way, he labors in the vineyard of worshipping dead soldiers,” she said. “He doesn’t labor in the vineyard of keeping a dissenting voice alive on your mean streets. He doesn’t have a clue what those issues are. Not a clue.”
Schaerr has served as a law clerk to Supreme Court Justices Warren Burger and Antonin Scalia and associate counsel to President George H.W. Bush. He works for the international firm of Winston and Strawn, where he is the chairman of the firm’s nationwide appellate, critical motions and litigation constitutionality practice.
Raquel Guillory, spokeswoman for the Maryland’s attorney general’s office, said Wednesday that the court’s decision did not affect the state’s anti-picketing law and that it would continue to be enforced.