Court Hears Challenge to Military Funeral Protests

In early March 2006, two Marines arrived at Al Snyder's Westminster, Md., home and told him that his 20-year-old son, Lance Cpl. Matthew A. Snyder, had been killed while serving in Iraq. Though the shock and grief of his loss were powerful, Al Snyder wanted to honor his son in the best way he could: with a peaceful, respectful funeral.

But he didn't get that. A group of church members from Westboro Baptist Church in Topeka, Kans., flew to Maryland to protest at Matthew's funeral. Fred Phelps, founder of the church (note: link may not be safe for work), picketed near the church with his two daughters and four grandchildren. They carried signs that read THANK GOD FOR DEAD SOLDIERS, SEMPER FI FAGS, and FAG TROOPS.

The members of Westboro Baptist Church didn't know anything about Matthew, nor were they claiming that he was gay. They were simply using his funeral as a vehicle to spread their message—that God is punishing the United States for tolerating homosexuality. The church, which has about 70 members—50 of whom are children, grandchildren, or in-laws of Phelps—sends small groups to unrelated events to publicize their views. And military funerals are a popular venue.

"It's pretty bad when you go to your son's funeral and there are pictures of two men having anal intercourse," Snyder says. "It's hard enough to bury a 20-year-old soldier, but to go through this at the same time is like kicking you in the face while you are lying on the ground."

Snyder sued the Phelpses for defamation, intentional infliction of emotional distress, intrusion, and publication of private facts. Initially, a jury favored Snyder's position, awarding him $10 million in damages. (A trial judge later reduced the amount to $5 million.) But then the Fourth Circuit Court overturned the lower court's decision on appeal, ruling that although the speech was "utterly distasteful," it should be considered protected political speech.

Snyder wasn't willing to stop there. "As long as we have military people dying, I will fight," he says. Now, the U.S. Supreme Court will hear the case, evaluating whether the protests should be considered protected speech under the First Amendment.

It has been difficult for opponents of the Westboro Church's protests to stop the Phelpses from spreading their message because the family is meticulous about following the law. At trial, it was undisputed that the family complied with all local ordinances and police directions. They contacted the police before picketing and stayed a specific distance away from the church. Still, even though every action the Phelpses have taken has been legal, more than 40 states and the federal government have enacted laws in response to limit protesting at funerals. But Margie Phelps—daughter of Fred Phelps, and a licensed attorney who's representing the family in the case—and her family have successfully challenged several of these statutes.

Josh Wheeler, associate director of the Thomas Jefferson Center for the Protection of Free Expression, says even though the speech at issue is "repugnant," it still deserves protection. This isn't an easy conclusion for Wheeler, especially because he disagrees with the Phelpses' message—his brother was gay. "This case [has] tested me," he says. "But it's important that Americans have the freedom to express issues of public concern without the fear of being sued for $5 million."

Several legal scholars consulted for this story speculated that the outcome of this case might shock the general public, particularly because Snyder's position is likely to be broadly popular among Americans. The high court traditionally supports free-speech arguments, even when the speech is offensive. "We have to look beyond the actual speech at issue and focus on the larger principal—the ability to censor or prevent the expression of another individual," Wheeler says.

But the specific facts of this case might be too extreme for a few of the justices. "Would it really bother any intelligent person to say that you can't protest at a funeral? What's next? They don't like the Catholic Church, so are they going to protest a wedding or a baptism?" Snyder says.

Margie Phelps and her family see funerals as the perfect outlet for their message. "I remember watching the news, and all of its pomp and circumstance. These funerals are a major public platform and no one is telling the truth," she says.

Although this suit has the ability to curtail free speech, some legal scholars say it's worth it. "What the church people want is the right to make any private individual the target of their assault. The court would be creating an incentive for religious speakers to be abusive [if it ruled in the Phelpses' favor]," says Jeffrey Schulman, a law professor at Georgetown University who drafted an amicus brief in Snyder's favor.

When asked how she would react if someone were to protest at a funeral of one of her loved ones, Margie Phelps's response was immediate: "Do you think I would give a rat's backside? My focus would 100 percent be, what did I do wrong and how do I get right with God?" The Phelpses have picketed about 600 military funerals and don't plan to stop any time soon, she says.

Snyder's passion is just as intense. Even though he struggles to pay the legal bills in the case on his modest, 40-hour-a-week salary, he won't quit the fight. "As long as we have two wars going on, I can't stop this. I won't stop it, because no military family should be subject to what my family was subjected to," he says.