Post by Arch on Oct 7, 2010 0:14:33 GMT -6
Military Funeral Protests: A Wartime Supreme Court Searches For Answers
Andrew Cohen
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.
Phelps and his family have made it their life's work to picket military funerals with signs like "God Hates Fags" and "Thank God for Dead Soldiers." When they did this in Maryland at the 2006 funeral of Marine Lance Corp. Matthew Snyder, the slain soldier's father, Albert, sued Phelps and company for damages. The claim? That the nasty picketing at the funeral constituted an invasion of privacy and the intentional infliction of emotional distress upon the grieving family. A jury agreed in 2007 -- what American jury wouldn't? -- and Snyder was awarded millions in damages. But a federal appeals court reversed the verdict on free speech grounds and the justices agreed to hear the case.
Snyder argued that his privacy was invaded because he is a private figure whose presence at his son's funeral made him part of a "captive audience" worthy of an exception to general rules encouraging the public dissemination of controversial speech. Phelps argued that Snyder became a public figure as a result of his ordeal, that the protests were peaceful and ended before the Snyder funeral actually took place, and that the Court's precedent in Flynt's old case, Hustler v. Falwell, effectively precludes Snyder from winning. There are some cases in which oral argument helps clarify a case for the public. There are some cases in which observers can easily draw conclusions from the tone and tenor of argument. This was not one of those cases.
Still, there were some hints. Justice Ruth Bader Ginsburg asked Phelps' lawyer why church members felt they needed to demonstrate at a private military funeral on the same day that they had picketed Annapolis and the state capitol in their zeal to spread their anti-gay, anti-military message. "This is a case about exploiting a private family's grief and the question is: Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for getting your message across?" Justice Elena Kagan, still in her first week of courtroom duty, said to Snyder's attorney: "So we are just talking the fact that there are people who have -- who are appropriating and taking advantage of a private funeral in order to express their views."
The justices also seemed troubled by the notion that Snyder became a "public figure" under the law -- and thus worthy of fewer privacy rights in this tort case -- only because Phelps essentially taunted him into it before the funeral. "Let's just say he [Snyder] does nothing, he does nothing other than bury his son," Chief Justice John Roberts asked Phelps' lawyer. "He is not then a public figure?" The lawyer, a Phelps family member, replied: "If he does nothing we don't picket him." The chief justice then sharply cut in: "Well, that's because if he does nothing and its not publicized, you don't get the maximum publicity that your clients are looking for."
Judging from the questions and answers, it's possible that a win-lose scenario for each of the parties could be on tap. For example, several justices -- Antonin Scalia in particular -- seemed to suggest skepticism about recognizing the right of tort plaintiffs like Snyder to successfully sue (for money damages) defendants like Phelps. He asked Snyder's lawyer the following question: "Suppose I don't think you have a cause of action for invasion of privacy when these people [Phelps and the protesters] were at this distance from the funeral... If I disagree with you on that cause of action, I suppose I would have to say there has to be a retrial now." This is a conservative court, remember, replete with Justices who are pro-business and thus decidedly anti-tort-award.
On the other hand, to the eternal delight of the dozens of state attorneys general who have been following the proceedings, the justices did not seem particularly concerned with state legislation around the country that currently limits funeral protests. Part of the reason for this may be that the Court recognizes it doesn't have to tackle that issue if it doesn't want to; this has never been a First Amendment case in the sense that an individual is challenging a government restriction on Phelps' free speech rights. But the Court may also be signaling its comfort with legislated time, place, and manner restrictions on military funeral protests which don't involve private tort cases like this one.
For example, Kagan asked of Snyder's lawyer:
"... suppose you had a general statute that just said, there will be no disruptions of any kind at private funerals. You know, pick your distance, 500 feet, 1,000 feet, but something that didn't refer to content, that didn't refer to ideas, that just made it absolutely clear that people could not disrupt private funerals. What harm would that statute not address in your case?"
This means, theoretically anyway, that Phelps and company could end up winning the battle but losing the war; prevailing in this particular lawsuit brought by Snyder but then having to face valid state laws in 48 states, from sea to shining sea, which limit the very funeral protests that the church members like to unveil upon military families. For his part, Snyder, crusading all the way to the Supreme Court so that other families would not have to share his experiences, might lose his chance at punishing Phelps through a damage award. But he could walk away knowing that some of those state laws came about as a result of his fight.
One final note. It's ironic, isn't it, that the High Court would hear a wartime case about great disrespect shown to military families at funerals just months after its last remaining veteran left it. There is little doubt in my mind how Justice John Paul Stevens, a venerated war veteran, would have ruled in Snyder v. Phelps if he were still around to make a call. It will be fascinating to note whether and to what extent his successor on the Court, Justice Kagan, disappoints him.
Andrew Cohen
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.
Phelps and his family have made it their life's work to picket military funerals with signs like "God Hates Fags" and "Thank God for Dead Soldiers." When they did this in Maryland at the 2006 funeral of Marine Lance Corp. Matthew Snyder, the slain soldier's father, Albert, sued Phelps and company for damages. The claim? That the nasty picketing at the funeral constituted an invasion of privacy and the intentional infliction of emotional distress upon the grieving family. A jury agreed in 2007 -- what American jury wouldn't? -- and Snyder was awarded millions in damages. But a federal appeals court reversed the verdict on free speech grounds and the justices agreed to hear the case.
Snyder argued that his privacy was invaded because he is a private figure whose presence at his son's funeral made him part of a "captive audience" worthy of an exception to general rules encouraging the public dissemination of controversial speech. Phelps argued that Snyder became a public figure as a result of his ordeal, that the protests were peaceful and ended before the Snyder funeral actually took place, and that the Court's precedent in Flynt's old case, Hustler v. Falwell, effectively precludes Snyder from winning. There are some cases in which oral argument helps clarify a case for the public. There are some cases in which observers can easily draw conclusions from the tone and tenor of argument. This was not one of those cases.
Still, there were some hints. Justice Ruth Bader Ginsburg asked Phelps' lawyer why church members felt they needed to demonstrate at a private military funeral on the same day that they had picketed Annapolis and the state capitol in their zeal to spread their anti-gay, anti-military message. "This is a case about exploiting a private family's grief and the question is: Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for getting your message across?" Justice Elena Kagan, still in her first week of courtroom duty, said to Snyder's attorney: "So we are just talking the fact that there are people who have -- who are appropriating and taking advantage of a private funeral in order to express their views."
The justices also seemed troubled by the notion that Snyder became a "public figure" under the law -- and thus worthy of fewer privacy rights in this tort case -- only because Phelps essentially taunted him into it before the funeral. "Let's just say he [Snyder] does nothing, he does nothing other than bury his son," Chief Justice John Roberts asked Phelps' lawyer. "He is not then a public figure?" The lawyer, a Phelps family member, replied: "If he does nothing we don't picket him." The chief justice then sharply cut in: "Well, that's because if he does nothing and its not publicized, you don't get the maximum publicity that your clients are looking for."
Judging from the questions and answers, it's possible that a win-lose scenario for each of the parties could be on tap. For example, several justices -- Antonin Scalia in particular -- seemed to suggest skepticism about recognizing the right of tort plaintiffs like Snyder to successfully sue (for money damages) defendants like Phelps. He asked Snyder's lawyer the following question: "Suppose I don't think you have a cause of action for invasion of privacy when these people [Phelps and the protesters] were at this distance from the funeral... If I disagree with you on that cause of action, I suppose I would have to say there has to be a retrial now." This is a conservative court, remember, replete with Justices who are pro-business and thus decidedly anti-tort-award.
On the other hand, to the eternal delight of the dozens of state attorneys general who have been following the proceedings, the justices did not seem particularly concerned with state legislation around the country that currently limits funeral protests. Part of the reason for this may be that the Court recognizes it doesn't have to tackle that issue if it doesn't want to; this has never been a First Amendment case in the sense that an individual is challenging a government restriction on Phelps' free speech rights. But the Court may also be signaling its comfort with legislated time, place, and manner restrictions on military funeral protests which don't involve private tort cases like this one.
For example, Kagan asked of Snyder's lawyer:
"... suppose you had a general statute that just said, there will be no disruptions of any kind at private funerals. You know, pick your distance, 500 feet, 1,000 feet, but something that didn't refer to content, that didn't refer to ideas, that just made it absolutely clear that people could not disrupt private funerals. What harm would that statute not address in your case?"
This means, theoretically anyway, that Phelps and company could end up winning the battle but losing the war; prevailing in this particular lawsuit brought by Snyder but then having to face valid state laws in 48 states, from sea to shining sea, which limit the very funeral protests that the church members like to unveil upon military families. For his part, Snyder, crusading all the way to the Supreme Court so that other families would not have to share his experiences, might lose his chance at punishing Phelps through a damage award. But he could walk away knowing that some of those state laws came about as a result of his fight.
One final note. It's ironic, isn't it, that the High Court would hear a wartime case about great disrespect shown to military families at funerals just months after its last remaining veteran left it. There is little doubt in my mind how Justice John Paul Stevens, a venerated war veteran, would have ruled in Snyder v. Phelps if he were still around to make a call. It will be fascinating to note whether and to what extent his successor on the Court, Justice Kagan, disappoints him.