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Making good law with hard facts

Posted: Sunday, October 31, 2010

The following editorial first appeared in the Fort Worth Star-Telegram:

Is Fred Phelps "the least likable party in all of First Amendment jurisprudence," as some legal bloggers have called him?

That's perhaps an exaggeration, though not as wildly so as statements Phelps made that provided grounds for a lawsuit against him.

That case now is before the U.S. Supreme Court, and like most First Amendment disputes it requires a difficult balancing of competing interests.

Phelps' tiny church in Topeka, Kan., has gained notoriety for sign-carrying and demonstrating near the funerals of military service members to express a belief that God hates America for tolerating homosexuality and that the war dead are his vengeful rebuke.

More than that, church members have directly demeaned dead soldiers online with outrageous commentary.

Are Phelps and his followers standing up for firm, if not widely popular, beliefs?

Or are their statements intrusive, obnoxious and indefensible?

More fundamentally, does the First Amendment prevent courts from penalizing this kind of expression by letting offended grieving families sue the protesters for monetary damages?

This is the kind of emotion-laden case that makes finding the right constitutional balance excruciating.

And during arguments Oct. 6, the Supreme Court grappled with the facts of the case as much as the law.

Lance Cpl. Matthew Snyder of Maryland was killed in Iraq, and outside his 2006 funeral at a Roman Catholic church, Westboro members held up signs that included "God Hates You," "Thank God for Dead Soldiers" and "Priests Rape Boys."

But the seven demonstrators stood in a public space 1,000 feet from the church entrance with police permission and left around the time the funeral started.

Snyder's father, Albert, saw television coverage afterward and then found a posting on a Phelps website saying Matthew had been taught to "defy his Creator, to divorce and to commit adultery."

A jury verdict for Albert Snyder that wound up totaling $5 million was overturned on appeal.

The justices looked at a number of issues: whether Albert Snyder entered public debate about the war, making the funeral fair game for protesters; whether funeral demonstrators must be directly confrontational for their comments to cross the line from free speech to fighting words that can be banned or punished; whether a sign's message determines if it's too intrusive into personal privacy to be protected by the First Amendment.

They peppered Snyder's lawyer with questions.

But Justice Ruth Bader Ginsburg zeroed in with this question to attorney Margie Phelps, arguing for her father: "Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for ... getting across your message?"

And Justice Sonia Sotomayor said, "I fully accept you're entitled in some circumstances to speak about any political issues you want. But what's the line between doing that and then personalizing it and creating hardship to an individual?"

Reasonable time, place and manner restrictions can separate on-site protesters from private events by setting up buffer zones; 40 states now have limits to protect funerals from disruption. Internet postings are a more difficult question.

But the justices should resist the temptation to narrow the First Amendment just because the Phelpses' rhetoric is obnoxious.



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