Snyder v. Phelps post-argument thread

Dan82 · Oct 6, 2010

I’ll start a single thread to post commentaries and analysis of Snyder v. Phelps.

http://www.scotusblog.com/2010/10/argument-recap-does-emotion-win/

Commentary: What role for emotion?

When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction? If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a “funeral exception” to the right to speak out in public in outrageous and hurtful ways. It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices. Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”

The two lawyers in the case came well prepared to argue both the facts and the law — from diametrically opposed perspectives — and, despite the overall mood along the bench, managed to do so quite impressively. But the anguish of Albert Snyder, father of a dead soldier, and of the other funeral-goers in Westminster, Md., four years ago, and the recollection of the ugly messages that protesters near the scene had displayed, so tugged at feelings that a video of them might have seemed to be playing, over and over again, on the frieze that rings the chamber’s ceiling.

The Court went searching, through hypothetical examples, for ways to define limits on protests at funerals, but usually managed to conjure even more sympathetic targets of hateful speech — such as a grandmother, leaving a cemetery where her soldier grandson killed in combat had just been buried, waiting at a bus stop and being harangued, “in vile tones,” by an anti-war protester expressing pleasure at the soldier’s demise (the scenario suggested by Justice Samuel A. Alito, Jr., and embellished by Justice Antonin Scalia).

Another telling sign was Chief Justice John G. Roberts, Jr., repeating with increasing force the accusation that the Westboro Baptist funeral protesters had singled out the dead soldier’s father and the funeral, not to enter a discussion about public affairs including morality, but simply to achieve “maximum publicity.” Snyder, he said, sought only to bury his son, not to make any kind of statement. The Chief Justice was openly skeptical of the small church’s claim, made by its lawyer, that “it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message.”

It is no surprise, of course, that the Justices get deeply interested in the facts whenever they confront a new plea to withhold the First Amendment’s protection from a particular kind of message, because the particulars can strongly influence the law. And, it also is no surprise that First Amendment cases tend to focus on messages that are more upsetting than decorous parlor speech...

http://www.scotusblog.com/2010/10/argument-recap-does-emotion-win/
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---------- Post added 6th Oct 2010 at 06:30 PM ----------

http://www.politicsdaily.com/2010/1...rotests-a-wartime-supreme-court-searches-for/

Military Funeral Protests: A Wartime Supreme Court Searches For Answers

The old pornographer Larry Flynt, whose nasty taunting of the Moral Majority's Jerry Falwell a generation ago helped create broad free speech protections for defendants in tort cases, may have offered the most useful perspective of all this week when asked to discuss the legal and moral implications of Snyder v. Phelps, the gut-wrenching military funeral protest case which came barreling before a wartime Supreme Court for oral argument Wednesday morning.

What Fred Phelps and his anti-gay followers of the Westboro (Kansas) Baptist Church do at military funerals is "despicable, distasteful... alarming" and "out of the pale," Flynt said Wednesday in a radio interview -- before gently noting that Phelps should win anyway because Americans still "have to tolerate things we don't necessarily like so we can be free." That tension -- between the legal right to loudly express hateful speech and the human right to silently grieve a loved one in peace -- left the justices scrambling for a set of workable legal standards to answer what the Associated Press diplomatically called the "vexing question" of the Snyder case...

http://www.politicsdaily.com/2010/1...rotests-a-wartime-supreme-court-searches-for/
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---------- Post added 6th Oct 2010 at 06:32 PM ----------

http://www.yorkdispatch.com/ci_16262605?source=most_viewed

High court hears arguments in funeral protest case

Jackson Township native Nate Riedy and a group of fellow college students camped out overnight in front of the U.S. Supreme Court to hear Spring Garden Township resident Albert Snyder argue his case against the fundamentalist Kansas church that picketed his son's funeral.

The group of Eastern University students was blocks away from the nearest restaurant or public bathroom and stuck it out through cold overnight temperatures to ensure they would get a seat for Wednesday's oral arguments.

Their work paid off. Wednesday morning, they were near the front of a long line of people hoping to get in.

"The ground is very hard," Riedy said with a smile. "I definitely have a disagreement with the ground on how hard it should be...

http://www.yorkdispatch.com/ci_16262605?source=most_viewed
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---------- Post added 6th Oct 2010 at 06:35 PM ----------

Alito Emerges as Supreme Court Rock Star

http://www.cbsnews.com/8301-504564_162-20018811-504564.html

There were no clear answers from the Supreme Court after today's arguments in a major First Amendment case, which pits a radical church's right to protest at soldiers' funerals against the rights of grieving families wanting to be left alone in mourning.

Some of the more liberal justices, like Ruth Bader Ginsburg, appeared sympathetic to the protesters and worried about restricting speech. Some of the conservatives, like Justice Samuel Alito and Chief Justice John Roberts, appeared ready to suggest there are limits to the First Amendment--and a funeral protest is a pretty good place to draw the line.

But that doesn't get you to five votes---and I'm not betting the family farm that even those three are sure things.

So with all the uncertainty, here are three things I can say for sure after Snyder v. Phelps.

1. Justice Alito has emerged as the Court's most insightful and strategic questioner at argument.

Today's session was a tour de force. He laid bare weaknesses in the protesters' case with savvy hypothetical questions that exposed potential dangers in adopting their arguments. He's like a one-justice Delta Force: He's so quiet and low-key while he drawing in the lawyers with his questions that he manages to plant several bombs before they even realize he's on the attack...

http://www.cbsnews.com/8301-504564_162-20018811-504564.html
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---------- Post added 6th Oct 2010 at 06:37 PM ----------

http://www.metroweekly.com/poliglot/2010/10/snyder-v-phelps-the-view-from.html

Snyder v. Phelps: The View From the Court

The U.S. Supreme Court now must consider how to rule in Snyder v. Phelps, which was argued before the high court this morning.

As I wrote in the story about the arguments -- "'You're Going to Hell' -- But First, the Supreme Court" --the case raises complex issues of First Amendment law:

The case, which centers around the religious group behind the godhatesfags.com website and who also protested outside of Matthew Shepard's funeral in 1998, presents the justices with a question about whether the First Amendment protection of, as Justice Sonia Sotomayor put it, public commentary about public figures -- which the court previously held is protected -- also applies to public commentary about private figures.

The case also, though, is about a son who died at war, and that impression was also indelible throughout the day...

http://www.metroweekly.com/poliglot/2010/10/snyder-v-phelps-the-view-from.html
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---------- Post added 6th Oct 2010 at 06:38 PM ----------

http://online.wsj.com/article/SB10001424052748703735804575536571427160514.html?mod=googlenews_wsj

Phelps's 'Outrageous' Free Speech

Should speech lose constitutional protection when it is "outrageous" and recklessly or intentionally causes "severe emotional distress"? The Supreme Court is facing this question in Snyder v. Phelps, which was argued Wednesday. Its answer will affect far more speech than the repulsive statements of Fred Phelps, pastor of the Westboro Baptist Church in Topeka, Kan., and his followers.

Mr. Phelps's group believes that the deaths of American soldiers, including heterosexual soldiers, are God's punishment for America's toleration of homosexuality. The group often expresses these views at soldiers' funerals, including the one for Lance Cpl. Matthew Snyder, who died in Iraq in 2006. Picketers in the vicinity of the Westminster, Md., service for Snyder carried signs with messages such as "God Hates the USA," "Fag troops," and "Thank God for dead soldiers." Later they posted a Web page condemning Snyder's family for not teaching him the supposedly correct religious beliefs.

Albert Snyder, Matthew's father, sued, and a jury awarded him $10.9 million. The trial judge held the speech wasn't defamatory—it only expressed religious opinions without making false factual claims. Nevertheless, he said the jury could find that the speech was "outrageous," and that Mr. Phelps and his followers therefore could be liable for the tort of "intentional infliction of emotional distress." The judge also held that they could be liable under the "intrusion upon seclusion" tort": the speech, he said, could be seen as having offensively intruded on the private funeral—even though the speech was partly online and partly 1,000 feet from the service, and even though Snyder's father first read the signs on television later that day.

The judge reduced the verdict to $5 million. The 4th Circuit Court of Appeals reversed on First Amendment grounds. Albert Snyder appealed...

http://online.wsj.com/article/SB10001424052748703735804575536571427160514.html?mod=googlenews_wsj
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---------- Post added 6th Oct 2010 at 06:40 PM ----------

http://www.pbs.org/newshour/rundown...arcia-coyle-on-military-funeral-protests.html

Inside The Supreme Court: Marcia Coyle on Military Funeral Protests

Marcia Coyle of the National Law Journal was inside the U.S. Supreme Court Wednesday to hear arguments in a much anticipated case on the scope and strength of the First Amendment: Snyder v. Phelps, which centers on a Kansas-based fundamentalist church's practice of protesting at the funerals of service members who have died in Iraq and Afghanistan...

http://www.pbs.org/newshour/rundown...arcia-coyle-on-military-funeral-protests.html
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---------- Post added 6th Oct 2010 at 06:41 PM ----------

http://www.miamiherald.com/2010/10/06/1860809/westboro-attorney-unflappable.html

Westboro attorney unflappable in Supreme Court arguments

Attorney Margie J. Phelps held her fire and brimstone Wednesday until she was safely outside the Supreme Court chambers.

Then she let loose.

"Your destruction is imminent," Phelps told more than 100 journalists assembled on the court steps. "And when it comes, don't stand there and say the servants of God didn't warn you."

Phelps had just finished an hourlong oral argument in the free speech case Snyder v. Westboro Baptist Church. She is the daughter of the church's founder, Fred Phelps, as well as its main legal advocate.

Inside the Supreme Court, stiff questioning from the justices hadn't flustered Phelps. In her first appearance before the high court, Phelps commanded both the facts and the law. More than one close court observer confided that she out-performed her opponent, attorney Sean E. Summers.

Only once or twice during the oral argument did Phelps hint at the fiery nature of her ideology, as when she told justices that "our answer is that you have got to stop sinning if you want this trauma to stop."

Outside the court, during the traditional post-argument news conference, Phelps let her voice grow ever more steely. Her volume rose as she spoke beneath gray skies.

"God is cursing America," Phelps told reporters. "He's opening up his armory. Every death is in God's hands, and he's just getting warmed up...

http://www.miamiherald.com/2010/10/06/1860809/westboro-attorney-unflappable.html
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---------- Post added 6th Oct 2010 at 06:42 PM ----------

http://www.cnn.com/2010/CRIME/10/06...RSS:+Politics)&utm_content=Google+Feedfetcher

Justices hear case of anti-gay protests at military funerals

The Supreme Court struggled Wednesday to find a constitutional balance between free speech and privacy in a case involving provocative anti-homosexual protests by a small church at the funeral of a soldier who died in Iraq.

Members of the Kansas-based Westboro Baptist Church protested outside the court, while inside one of their members argued they have the right to promote what they call a broad-based message on public matters such as wars.

But the lawyer for the fallen Marine's father argued those protests are an invasion of privacy and an intentional infliction of emotional distress.

"[Justice] Brandeis said the right to be let alone was the most important, and so he must have been thinking there could be a tort [lawsuit] there for interference with privacy," said Justice Stephen Breyer, speaking for many of his colleagues. "And emotional injury, deliberately inflicted, could be one. ... But I see that in some instances that could be abused to prevent somebody from getting out a public message, and therefore, I'm looking for a line...

http://www.cnn.com/2010/CRIME/10/06...RSS:+Politics)&utm_content=Google+Feedfetcher
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---------- Post added 6th Oct 2010 at 06:44 PM ----------

http://www.theatlantic.com/national...o-baptist-churchs-surreal-day-in-court/64167/

Westboro Baptist Church's Surreal Day in Court

More often than one would expect, oral argument in front of the Supreme Court resembles a Celebrity Deathmatch between Lionel Hutz of The Simpsons and Ned Racine of Body Heat. Lawyers with no Supreme Court experience sometimes insist on going to the Show. The result can be a halting hour of argument that sometimes resembles the 1945 World Series, between two teams so war-depleted that sportswriter Warren Brown said, "I don't think either one of them can win it."

In today's high-profile argument in Snyder v. Phelps, two inexperienced pilots sailed into a legal Bermuda Triangle, where the compasses no longer pointed to magnetic North. It's possible that, once it recovers its wits, the Court will put this case in order; but in the courtroom at least, what seemed at 10 a.m. like a sure thing had become by 11 a.m. a head-scratcher.

Snyder concerns the Westboro Baptist Church, which is basically the extended Phelps family of Topeka, Kansas. Convinced that God abominates homosexuality, the WBS pickets the funerals of American service personnel (gay or straight) killed in Afghanistan and Iraq, holding signs like GOD HATES FAGS, THANK GOD FOR DEAD SOLDIERS and YOU'RE GOING TO HELL. The rationale is that America is Sodom and we all better repent wicked soon...

http://www.theatlantic.com/national...o-baptist-churchs-surreal-day-in-court/64167/
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---------- Post added 6th Oct 2010 at 06:45 PM ----------

http://politics.usnews.com/news/art...e-speech-limits-in-military-funeral-case.html

Supreme Court Weighs Free Speech Limits in Military Funeral Case

Supreme Court Justices in oral arguments Wednesday, expressed some sympathy for the family of a slain Marine whose funeral was protested by an extremist conservative Christian denomination, but appeared unwilling to impose limits of the First Amendment that protects the right to voice unpopular views.
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The case, Snyder v. Phelps, involved the funeral of Matthew Snyder, a 20-year old Marine killed in the line of duty in Iraq in 2006. Fred Phelps and others from the Kansas-based Westboro Baptist Church, whose members routinely demonstrate at both high and low-profile public events around the country, picketed the funeral carrying signs baring all manner of offensive slogans, including "God Hates Fags" and "Semper Fi Fags."

Justice Ruth Bader Ginsburg, exemplified the court's conundrum by noting that the protesters had not violated any laws or police instructions during their demonstration, while conceding that the entire effort was "exploiting a private family's grief...

http://politics.usnews.com/news/art...e-speech-limits-in-military-funeral-case.html
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---------- Post added 6th Oct 2010 at 06:47 PM ----------

http://www.npr.org/templates/story/story.php?storyId=130379867

High Court Struggles With Military Funerals Case

At an emotional argument before the U.S. Supreme Court on Wednesday, the justices struggled with a case testing whether picketers at a military funeral may be sued for inflicting emotional distress on the family of a dead soldier.

The case, Snyder v. Phelps, pits the father of a Marine killed in Iraq against seven religious picketers who demonstrated at the soldier's funeral with signs that read "God hates fags" and "You're going to hell." Though the Marine wasn't gay, the picketers say they were carrying God's message to condemn "sodomite enablers...

http://www.npr.org/templates/story/story.php?storyId=130379867
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---------- Post added 6th Oct 2010 at 06:52 PM ----------

http://www.latimes.com/news/nationw...6-court-funerals-web-20101006,0,3870903.story

Justices appear set to limit funeral protests

The Supreme Court justices, hearing arguments Wednesday in a funeral protest case, sounded as though they are inclined to set a limit to the free-speech rule to permit lawsuits against those who target ordinary citizens with especially personal and hurtful attacks.

The First Amendment says the government may not infringe the freedom of speech, but it is less clear whether it also shields speakers from private lawsuits.

At issue Wednesday was whether the Maryland father of a Marine killed in Iraq could sue a Kansas family which protested near his funeral. The Phelps family not only held signs that said "Thank God for IEDs," but they also put on their website a message that accused Albert Snyder of having raised his son "to defy the Creator" and "serve the devil...

http://www.latimes.com/news/nationw...6-court-funerals-web-20101006,0,3870903.story
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Snyder v. Phelps post-argument thread

Dan82 Full Member

Dan82
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