Free Speech or Harassment?

By Lubin, Andrew | USA TODAY, January 2011 | Go to article overview

Free Speech or Harassment?


Lubin, Andrew, USA TODAY


"IF THE WESTBORO BAPTIST Church had simply picketed LCPL Snyder's funeral, this would perhaps be a First Amendment issue," explains Craig Trebilcock, one of the two attorneys representing plaintiff Albert Snyder. "Instead, they subjected the Snyder family to a reign of harassment prior to their son's funeral to two weeks afterwards--which changed the case from a Federal freedom of speech issue to one of harassment and conspiracy, which is instead a civil issue."

The case of Snyder v. Phelps was heard Oct. 6, 2010, by the Supreme Court. Sean Summer represented Albert Snyder, father of Marine Lance Cpl. Matthew A. Snyder, while attorney Margie Phelps, daughter of defendant Frederick Phelps, spoke on behalf of Phelps and the Westboro Baptist Church. This is a contentious and increasingly emotion-driven case with almost weekly exposure. From picketing the funerals of Marines and soldiers killed in combat, the church sent pickets in December to Elizabeth Edwards' funeral. In no case do they have any connections to any of the people whose funerals they attend, but rather use the opportunity to promote their virulent anti-homosexual message.

The facts in Snyder v. Phelps are simple: LCPL Snyder, 20, died in March 2006 in a noncombat incident in Iraq's Anbar Province. During his funeral, held on private ground in Westminster, Md., members of the Westborn Baptist Church of Topeka, Kan., picketed Snyder's funeral with signs, banners, and invective--calling him a homosexual and claiming his death was God's way of punishing the U.S. for condoning homosexuality.

In 2007, Snyder sued Westboro Baptist Church and its leaders contending they invaded his privacy and intentionally inflicted emotional distress. A jury awarded him $2,900,000 in compensatory damages and $8,000,000 in punitive damages in October 2007, forcing the Westborn Church into filing for bankruptcy.

However, in September 2009, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., overturned the lower court's verdict, with existing law allowing $16,510.80 in court costs to Phelps as the successful litigant. Two of the three judges found in favor of Westboro on the grounds that Westboro's message was "sheer hyperbole" and therefore entitled to extra First Amendment protection due to the outrageousness of the message. Ironically, for ultra-conservative Westboro Baptist Church, the judges cited Hustler Magazine, Inc. v. Falwell (1988), in which the Supreme Court's unanimous 8-0 decision held the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them. Hustler's parody of Jerry Falwell was deemed to be within the law because the Court found that reasonable people would not have interpreted the parody as factual, thus reversing a prior jury award to Falwell of $200,000.

While various legal specialists say the case is a test of the limits of free speech, an equal amount disagree. Similar demonstrations by Westboro Baptist Church members have prompted several states to establish limits on funeral protests and the attorneys general of 48 states filed a signed amicus brief in support of Snyder. "People want to make this out as free speech," Trebilcock notes, "but actually it's about harassment and who is or is not a public figure. …

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