High court looks at military funeral protests

[September 30, 2010]  YORK, Pa. (AP) -- One thing Al Snyder wants to make clear: His boy fought and died for freedom in Iraq, but not for the right of some "wackos" to spew hate at soldiers' funerals under the protection of the Constitution.

Caption: In York, Pa., last week, Albert Snyder, 55, talks about his son, Matthew, a Marine who was killed in Iraq, and about the upcoming Supreme Court case that will focus on a lawsuit he filed against the Rev. Fred Phelps and the Westboro Baptist Church for protesting his son's funeral. The court is set to decide whether members of a fundamentalist church in Kansas who picketed Matthew's funeral with signs bearing anti-gay and anti-Catholic invective have a constitutional right to say what they want. (AP photo by Ann Foster)

"It's an insult to myself, my family and the veterans to say this is what our military men and women died for," Snyder says, barely concealing his anger.

Yet more than four years after the death of his only son, Matthew, Snyder is in the middle of a Supreme Court case that raises almost precisely that issue.

The court is set to decide whether members of a fundamentalist church in Kansas who picketed Matthew's funeral with signs bearing anti-gay and anti-Catholic invective have a constitutional right to say what they want.

Or, in intruding on a private citizen's funeral in a hurtful way, have the protesters crossed a line and given Snyder the right to collect millions of dollars for the emotional pain they caused?

The justices will hear arguments in the case next Wednesday.

The case is shaping up as a potentially important test of the First Amendment. "The difficulty in this case is that the speech occurs at the most personal and sensitive of times," said Cliff Sloan, a First Amendment expert at the Skadden, Arps law firm and the former publisher of Slate magazine.

Margie Phelps, a daughter of the pastor of the Westboro Baptist Church and the lawyer representing her family members at the Supreme Court, said that if the justices reinstate the $5 million judgment to Snyder, anyone who says anything upsetting to a mourner "is subject to a crushing penalty."

But Snyder said in an interview with The Associated Press that if he had the chance, he would tell the justices "that this isn't a case of free speech. It's case of harassment."

Snyder's nightmare began on a late winter night in 2006 when he flipped on the porch light and saw two uniformed Marines standing at the front door of his home in this small south central Pennsylvania city.

He knew right away that Matthew was dead, after just five weeks in Iraq.

He could accept his son's death because Matthew always wanted to be a soldier.

But Snyder was not prepared for what came next.

Eleven hundred miles away, in Topeka, Kan., the Rev. Fred Phelps and other family members who make up most of the Westboro Baptist Church decided that Snyder's funeral at a Catholic church in Westminster, Md., would be their next stop.

Phelps and his small band of followers have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God's punishment for the nation's tolerance of homosexuality.

They showed up with the usual signs, including "Thank God for dead soldiers," "You're Going to Hell," "God Hates the USA/Thank God for 9/11," and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.

The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.

Several weeks later, as Snyder surfed the Internet for tributes to Matthew from other soldiers and strangers, he came upon a poem on the church's website that attacked Snyder and his ex-wife for the way they brought up Matthew.

That's when he decided to take action and soon filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.

Then the federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.

The idea that the picketers' rights might trump his own led Snyder to continue the lawsuit. "They want to use the First Amendment as both a sword and a shield and that's not right," he said.

The Supreme Court gave him some hope that, in deciding to hear the case, the justices might say that funerals are different.

Phelps and his followers do not limit themselves to funerals. They have been protesting for decades, about homosexuality, abortion, Catholics and Jews. The court is made up of six Catholics and three Jews.

The Phelpses have even picketed unlikely targets, college students and breast-cancer survivors, to call attention to their belief that God is angry with the United States.

When Chief Justice John Roberts appeared in Lawrence, Kan., in 2008, Westboro protesters were there as well.

Asked about free speech cases that day, Roberts said, "It's certainly the responsibility of the Supreme Court to uphold freedom of speech, even when it's unpopular."

Media organizations, including The Associated Press, are urging the court to side with the Phelpses despite what they call the church's "deeply offensive" message.

The groups said that "to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment's most basic precepts."

Other groups, including the Anti-Defamation League, are not taking sides, but say the case is a poor one for making any broad pronouncements about the First Amendment that could inhibit religious expression. Some conservative groups are concerned that a ruling for Snyder could be used to limit anti-abortion protests.

On the other side, all the states, except Maine and Virginia, and veterans groups say that the court should stand behind state laws that limit funeral protests and recognize that mourners at a funeral have a right to be left alone.

The church's lawyer said the outcome of the case will not affect the work of her father and his flock. "The Westboro Baptist Church will talk to the nation until the job is done," Margie Phelps said.

Snyder said he thinks a victory would "put a dent" in the Phelpses' ability to travel far and wide to other military funerals.

He wants other parents, having just been told a child was killed in action, not to have worry that the funeral might be disrupted. "I had one chance to bury my son and it was taken from me," Snyder said.

But he also struck a more ominous tone. "It has to be stopped," Snyder said. "If the courts don't stop it, believe me, someone is going to."

[Associated Press; By MARK SHERMAN]

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