Free speech, privacy rights, emotion collide at SCOTUS in Fred Phelps case

By Kimberly Atkins

The Daily Record Newswire

''Why should the First Amendment tolerate exploiting this Marine's family?''

That question, posed by Justice Ruth Bader Ginsburg during recent oral arguments in Snyder v. Phelps, underscores the tough task before the U.S. Supreme Court: drawing the legal line between free speech rights and privacy rights in a case laden with emotion.

The case asks whether the First Amendment precludes a tort award against a fundamentalist Christian church whose members protested a military funeral while holding signs bearing messages such as ''Thank God for dead soldiers.''

The church, which subscribes to the belief that God is punishing the country and the military for tolerating gay people, also posted an message on its website, that the soldier's parents ''taught him that God was a liar.''

But the members also conducted the protest on public land, stayed 1,000 feet from the church where the funeral was held, and contacted local authorities in an effort to avoid violating any local laws.

So the justices must now decide, in essence, whether some speech, made in a lawful way, is offensively outrageous enough to be tortious, First Amendment notwithstanding.

The justices themselves seemed to know the job before them was a tough one.

''I don't know what the rules ought to be there,'' said Justice Stephen Breyer.

''That is, do you think that a person can put anything on the Internet? Do you think that a person can put anything on television even if it attacks, say, the most private things of a private individual?''

Counsel for each party in the case argued from the standpoint of the little guy - each side urging the court to protect its constitutional interest.

''Mr. [Albert] Snyder simply wanted to bury his son in a private, dignified manner,'' said Sean Summers, representing the father of the fallen Marine.

''When the [church members'] behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the state of Maryland.''

Margie Phelps, the attorney and daughter of church founder Fred Phelps, portrayed the church as the underdog, claiming it was punished for engaging in a public discussion Snyder himself joined when he criticized the war that claimed his son.

''When a plaintiff comes to your court and says, 'I want $11 million from a little church because they came forth with some preaching I didn't like,' I think it does make a difference for the court to look closely at what role did that man have in that public discussion,'' Phelps said.

Published: Thu, Nov 25, 2010

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