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Only About the Law? Part II

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Last Friday (Oct. 8) I published a commentary discussing the case Snyder v. Phelps currently before the U.S. Supreme Court; a case that, at first glance, would seem to fall under the free speech aspect of the First Amendment.

Quoting from the Court's own website: "Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?"

I put forth comments from Justices and others regarding the nature of the case. I offered a series of questions that challenged the premise on both sides and ended by asking readers to comment. Besides my own web site -- EthicsStupid.com -- from time to time, I post the same commentary on Huffington Post. Such was the case last Friday.

The following comment came directly to my site from Michael:

"Okay, I get it, you are as biased as Glenn Beck, and can't even TRY to be neutral on an issue... Do you think you could AT LEAST tell the truth?! Could you actually be bothered to read the entire transcript before disseminating this drivel..?

"You were COMPLETELY wrong on the justices. When they had to question [Summers] about a single query 7 times, just to get him to answer, I think they were a little more than critical... They actually treated Marge with some respect! They were FAR more abusive to [Summers]. Not to mention the fact that Matt's [the dead Marine's] father PUBLISHED in multiple sources, the time and date of the funeral, AND public invitations, and assistance SPECIFICALLY against WBC. That, by legal precedent AND written law, makes it a public event.

"The MOMENT he opened his trap about it, it was no longer private. Private functions remain private. You know, only family and close friends. Public functions include challenging a church to picket them, inviting loud, obnoxious groups like the patriot guard, and in any and every other way making an ass of one's self to make everything known.

"The obscene person here is Snyder. What kind of sick son of a bitch can even CONSIDER trying to make a profit off of their own kid's death? When you demand MILLIONS of dollars... that is more than just 'damages for pain and suffering.' That is plain and simple greed.

"These jackasses have been picketing in MY HOME TOWN for almost 2 decades, and they have NEVER caused a real problem, and the only problems surrounding them stem from intolerant people like Snyder, who think it's okay to attack someone for their religious and moral beliefs. Try looking at both perspectives on an issue, THEN writing the story. Oh, wait. You are a journalist. That's impossible."

Michael brings up several points that I'd like to respond to.

To begin with I am not a journalist. I write opinion pieces from an ethical perspective drawn from news stories.

I had begun to write Friday's piece on Wednesday, before a transcript was available. I relied on reporting and characterization from Lyle Denniston who writes for the Supreme Court Blog and included a link to that article.

Since Friday, however, I have read a copy of the full 67-page transcript and listened to the audio made available by the Supreme Court. I encourage anyone with an interest not just in this case, but in any case, to listen to the audio. It offers great insight into how arguments are made and the thought process of the Justices.

Since Sean Summers, the attorney bringing the case to the Court for Albert Snyder, the petitioner and father of the dead Marine, was the first to speak, all questions by the judges were focused on his side of the argument. The standard used in such cases is to explain your side as specifically and clearly as possible utilizing applicable court precedents. Each side must face the challenges brought by the Justices to explain why they're right and the other side is wrong.

After both reading and listening to the transcript, I found that Mr. Denniston's characterization of events seemed accurate. The Justices were seeking clarity as to where the line should be drawn between free speech and respecting a private funeral. However, in comparing both sides, the Justices seemed more skeptical of the argument made by Margie Phelps on behalf of the Westboro Baptist Church.

The Westboro argument seemed to focus on the church's right to protest due to the fact that Mr. Snyder, the dead Marine's father, had made several public announcements about his son's funeral. I never found anything in the Justices' questioning that support Michael's claim that Mr. Snyder made "...public invitations, and assistance SPECIFICALLY against [the Westboro Church]." If he had, it seemed to bear no relevance to the case in the mind of the Justices.

While protests are generally permitted by law, the Snyder case focused on the specific nature of the Westboro protest, namely that they specifically targeted a private individual for their protest both at the funeral site and on the Internet. This, in the opinion of Mr. Summers, arguing on behalf of Mr. Snyder, constituted an "intentional infliction of emotional distress."

Michael further states that "The MOMENT [Mr. Snyder] opened his trap about it, [posting newspaper and other notices about the funeral] it was no longer private. Public functions include challenging a church to picket them..."

I never heard any of the Justices question this aspect of the issue.

Michael's judgment that Mr. Snyder was making "a profit off of [his] own kid's death" also struck me as inaccurate. I was reminded of one of the opening statements from Thomas Paine's Common Sense, which reads, "a long habit of not thinking a thing wrong, gives it a superficial appearance of being right."

Reverend Phelps and the Westboro Church had conducted so many similar protests against deceased soldiers with impunity that Mr. Snyder apparently felt it was important to take a stand against their actions. Although a federal jury awarded Snyder nearly $11 million in damages, I don't believe any reasonable person could make the case that the small Westboro Church had any assets approaching that award. Getting a judgment for damages and receiving payment are two very different things.

My reading of the case is that the attorneys representing Mr. Snyder were looking for a way to stop Westboro from engaging in protests that targeted private military personnel and their families at a time of great anguish.

However, I was wrong when I wrote that, "protesters did interact with friends and family members who were both coming and going to the service." According to the court transcript, there was no "importuning" of anyone coming or leaving the funeral.

Although I agree with Mr. Denniston's conclusions about the arguments presented, in the future, I will wait until I have read or listened to the entire transcript of a case before writing an opinion, or at least make clear that I have not done so.

Jim Lichtman writes and speaks on ethics. His commentaries can be found at www.EthicsStupid.com.