SCOTUS to Enter Phelps Fray

The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. This was one of three newly granted cases. The others test the constitutionality of background checks for workers who work for the government under contract, rather than as regular employees, and a case testing the right to sue in state court when a child is injured or dies after receiving a vaccine. All of the cases will come up for review in the Court’s next Term, opening Oct. 4.

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting. The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech. The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters.


In March four years ago, Marine Lance Corporal Matthew A. Snyder was killed while serving in Iraq. His family arranged for a private funeral, with Christian burial, at St. John’s Catholic Chruch in Westminster, Md. When word of the planned funeral appeared in the newspapers, the Rev. Fred W. Phelps, Sr., pastor of Westboro Baptist Church in Topeka, Kan., who has gained notoriety in recent years by staging protests at military funerals, decided to stage a demonstration at the Maryland funeral. In response to such protests, some 40 states have passed laws to regulate funeral demonstrations.

The Rev. Phelps’ church preaches a strongly anti-gay message, contending that God hates America because it tolerates homosexuality, particularly in the military services. The church also spreads its views through an online site, www.godhatesfags.com. When the Snyder funeral occurred, the Rev. Phelps, two of his daughters and four grandchildren staged a protest nearby. They carried signs with such messages as “God Hates the USA,” “America is doomed,” “Matt in hell,” “Semper fi fags,” and “Thank God for dead soldiers.” The demonstration violate no local laws, and was kept at police orders a distance from the church. After the funeral, the Rev. Phelps continued his protest over the Snyder funeral on his church’s website, accusing the Snyder family of having taught their son irreligious beliefs.

The soldier’s father, Albert Snyder, sued the Rev. Phelps, his daughters and the Westboro Church under Maryland state law, and won a $5 million verdict based on three claims: intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy. (The verdict included $2.9 million for compensatory damages and $2.1 million for punitive damages; the punitive award had been reduced from $8 million by the trial judge.) The Fourth Circuit Court overturned the verdict, concluding that the protesters’ speech was protected by the First Amendment because it was only a form of hyperbole, not an assertion of actual facts about the soldier or his family. While finding that the Phelps’ remarks were “utterly distasteful,” the Circuit Court said they involved matters of public concern, including the issue of homosexuality in the military and the political and moral conduct of the United States and its citizens.

In Albert Snyder’s appeal, his lawyers argued that the Supreme Court’s protection of speech about public issues, especially the Justices’ 1988 decision in Hustler Magazine v. Falwell, does not apply “to private individuals versus private individuals.” If it does apply, the petition said, “the victimized private individual is left without recourse.” The Circuit Court decision, it added, encourages private individuals to use hyperbolic language to gain constitutional protection “even if that language is targeted at another private individual at a private, religious funeral.”

Even if the Hustler decision does apply to the kind of remarks at issue, the petition asserted, the case also raises the issue of whether those who attend a funeral are like a “captive audience” and thus need protection against intruders who were not invited.

In another case bearing on claims of privacy, the Court Monday added to its decision docket a case involving the broad issue of whether the Constitution protects a “right of informational privacy” — that is, a form of Fifth Amendment protection against government demands for personal information. The Supreme Court mentioned such a right in a 1977 decision, and has seldom mentioned it since. A group of workers employed by California Institute of Technology, and working under contract at Caltech’s Jet Propulsion Laboratory outside of Pasadena, won a court order against some of the government demands for information about their private lives — part of background checks similar to the security reviews that regular federal employees often undergo.

The National Aeronautics and Space Administration took the issue to the Supreme Court in NASA v. Nelson, et al. (09-530). The petition argued that the lower court ruling not only jeopardizes the government’s authority to get information about contract employees, but also about its capacity even to demand information from its own agencies’ employees. “The ramifications of the decision below are potentially dramatic,” the petition contended.

In the third newly granted case, Bruesewitz, et al., v. Wyeth, Inc., et al. (09-152), the Court will be reviewing the scope of a 1986 federal law that sought to bar all state-court damages lawsuits claiming that vaccines given to children caused injury or death because of a design defect, and that a safer alternative was available but was not used. The appeal by a Philadelphia family for themselves and their disabled daughter contended that the Third Circuit Court ruled that the 1986 law only bars state court claims where the harmful side-effects were unavoidable. They argued that all such claims are barred, whether the side-effects were avoidable or not.

The Court agreed to hear the Bruesewitz case after asking for the U.S. Solicitor General’s views on the underlying legal issue. The SG urged that the Court grant review of this case, rather than another pending on the same issue (08-1120).