Quick constitutional pop quiz: What do you hate? (And by you, I mean you.)
If you answered: homosexuals, Jews, Catholics, the military, the pope, and more or less everyone except Fred Phelps, who founded the Westboro Baptist Church and is thus your dad/uncle/granddad/third cousin, you are probably one of the 30-plus members of the church, which argued at the Supreme Court this morning for the right to vile, hateful protests at the funerals of fallen soldiers. If you answered: intolerance, incivility, people who glom onto the private grief of military families, or the Westboro Baptist Church, you probably sympathize with Albert Snyder, whose efforts to bury his son, Matthew, who died in Iraq in 2006, were marred by members of the Phelps family wielding signs reading "God Hates Fags," "God Hates You," and "Thank God for Dead Soldiers."
(Oh, and just for the record: What I hate is tripping over a child holding a sign that reads "God Hates You" as I am trying to get to oral argument at the Supreme Court. There is a special charcoal briquette in hell for parents who teach kids to think that way.)
What—you may be wondering—does the stuff you hate have to do with the First Amendment? Well, ordinarily, nothing. But oral argument proves to be a virtual Mardi Gras of hate this morning, and even the justices reveal that if one truly hates certain speech enough, it can go a long way toward shaping one's view of the law. If the old saying—that bad facts make bad law—is true, it's arguably even more true that pissed off jurists (and bad oral advocates) make for very bad precedent.
The facts of Snyder v. Phelps are probably already familiar to you, which familiarity assuredly delights the members of the tiny Westboro Church. The Phelps clan stages protests at, among other things, military funerals, to make the point that American soldiers are dying because of American tolerance of homosexuality and other assorted sins. Albert Snyder prevailed at a jury trial on claims that the Phelps demonstration at his son's funeral was an invasion of his privacy and an intentional infliction of emotional distress. He won almost $11 million in damages; an award that was halved by the trial court judge and then overturned completely by the 4th Circuit Court of Appeals, which determined that the Phelps protest was protected free speech under Supreme Court precedent. The Supreme Court agreed to take the case. Everyone in America wondered why.
Well, wonder no more, my friends. It appears that at least a few of the justices really, really, really just hate the Phelps family and its manner of protest, and they might even be willing to whip up a little new First Amendment law to prove it.
Sean E. Summers, arguing on behalf of Albert Snyder, opens abruptly: "We are talking about a funeral. If context is ever going to matter, it has to matter in the context of a funeral." But Justice Antonin Scalia breaks in to ask whether the real issue in the case is whether the funeral was disrupted, the harm caused by the video of the funeral that Snyder actually saw, or the emotional distress caused by the so-called "epic" poem addressed to the Snyders that was posted on the Westboro Church Web site. The Phelps family likes to offend across multiple platforms. Scalia, who will spend the morning trying to unravel the precise First Amendment issue in this case, thinks the funeral issue got jumbled up in the lower courts with the emotional harm caused by viewing the epic. He is skeptical that the material posted on the Internet really caused emotional distress because it was Snyder's "choice to watch them."
Justice Ruth Bader Ginsburg can't understand why concerns over a Phelps-style protest aren't allayed by neutral state regulations about when, where, and how one can protest at funerals. Scalia retorts that the "case involves, at least if we accept your version of it, a protest of the dead soldier who is going to hell and whose parents have raised him to go to hell," and that telling the protesters to stand at a certain distance is "not to say you can have a protest within a certain distance that defames the corpse."
There is a side skirmish over whether the "you" in "God hates you" was directed at Matthew Snyder or the world at large. Justice Samuel Alito suggests, "If you read the epic"—directed at Matthew Snyder—perhaps that sheds light on who "you" is. Justice Ginsburg thinks that since the church repurposes its "God Hates You" signs for every protest, "It sounds like the 'you' was the whole society, the whole rotten society in their view."
Justice Stephen Breyer—who has had a good deal to say about the Internet and incitement and free speech and balancing tests in recent weeks—also wonders whether the interesting part of this case is the handful of signs at Matthew Snyder's funeral, which Albert Snyder never saw, or the television broadcasts and Internet postings that followed. And so he's off: "Do you think that a person can put anything on the Internet? Do you think they can put anything on television, even if it attacks, say, the most private things of a private individual?"
Justice Sonia Sotomayor says she is "trying to tease out the importance of whether the person's a private or public figure," which matters because the Supreme Court held in 1988 in a dispute between Hustler magazine and the Rev. Jerry Falwell that Hustler was not liable for a nasty parody of Falwell, in part because it was hilarious and in part because he was a public figure.
Video: High Court Struggles With Funeral Protest Case
Breyer says that even if the protester said "something absolutely outrageous" on TV or online that "was intended to and did inflict serious emotional suffering," if it was said as part of a protest against war, "at that point I think the First Amendment might not leave this alone." Breyer is looking for a rule. Call it a new rule. But Justice Elena Kagan echoes Ginsburg that a neutral statute barring anyone from disrupting private funerals would achieve the same ends. Alito asks what would happen under these neutral laws "if someone came up to Mr. Phelps at the funeral and spat in his face." But before he can finish, Ginsburg breaks in to observe that spitting at a distance of several hundred feet would be quite an achievement. The chief justice looks grim.
Margie J. Phelps represents Westboro Baptist Church, and yes, before you ask, she hates you, she really hates you. She most likely hates the six Catholics and three Jews up there on the bench, too. But she hides it well. Speaking in the flat, affectless voice of someone who has been either extremely well-coached or exceptionally well-medicated in anticipation of today's festivities, she explains to the justices, "When members of the Westboro Baptist Church entered an ongoing, extensive, public discussion ... in direct connection with the deaths and funerals of soldiers killed in Iraq and Afghanistan, they did so with great circumspection and an awareness of the boundaries that have been set by the court."
Scalia wonders whether these signs and Web posts could be unprotected words under the fighting words exception to the First Amendment, but Phelps says this protest was never intended to provoke a fight. Channeling Stephen Colbert, she says their message is just this: "Nation. Hear this little church. If you want them to stop dying, stop sinning."
Here's where the justices get to express just how much they hate the Phelps tactics. They call this "posing hypotheticals." Counsel spends the remainder of the day refusing to answer the hypotheticals. It's rapidly become a hate stalemate.
Kagan wonders if a group could follow a wounded soldier around and "demonstrate at his home, demonstrate at his workplace, demonstrate at his church," does he have a claim for intentional infliction of emotional distress?
Alito ups the ante: He envisions a "grandmother who has raised a son who was killed in Afghanistan or in Iraq" who goes to visit the gravesite and is approached by a war protester who says he is so happy her grandson was killed by an IED. "Now, is that protected by the First Amendment?" he asks. Phelps replies that maybe it would incite a violent reaction by the listener, so Alito qualifies, "She is an elderly person, she's not in a position to punch someone in the nose." And Scalia with the assist: "And she's a Quaker, too!"
Margie Phelps tries to suggest that the old Quaker grandma never made her dead grandson a public figure, whereas once Snyder took to the airwaves to ask "when will this senseless war end," he made himself a public figure. And so it came to pass that "a little church where the servants of God are found" heard his question and has an answer: "Our answer is, you have got to stop sinning," she says, making clear that Albert Snyder is responsible for the hate heaped upon his head by their church.
Alito can't quite believe what he's hearing: "Does every bereaved family member who provides information to a local newspaper for an obituary thereby make the deceased person a public figure?" He asks whether harassing African-Americans on the street with racial insults is also a matter of "public concern." Phelps responds: "I think approaching an individual up close and in their grill to berate them gets you out of the zone of protection." She uses the term "up in their grill" several times today. As a legal matter or even a practical one, it makes absolutely no sense as far as I can tell, but it is rather charming when delivered in a dead flat monotone.
Justice Anthony Kennedy jumps in to murmur worriedly about the fact "that all of us in a pluralistic society have components to our identity" and adds that if the Phelps position is that "you can follow any citizen around at any point ... you should help us in finding some line there." Adds Breyer, "We are still so worried about the statements on television and on the Internet and the knowledge there."
The headline writers are going to say that the justices "struggled" with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that's why we needed a First Amendment in the first place.
Disclosure: I am on the steering committee of the Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for Free Expression, both of which filed amicus briefs on behalf of the Westboro Baptist Church in this case.