THE BLOG
10/07/2010 11:55 pm ET | Updated May 25, 2011

Only About the Law?

At its best, religion can offer hope and comfort in time of need. At its worst... well, that brings us to Snyder v. Phelps -- a matter before the U.S. Supreme Court which is sure to raise reaction on both sides.

In plain English, the issue is "Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?"

Four years ago, Lance Cpl. Matthew A. Snyder of Finksburg, Maryland, died from a non combat-related vehicle accident in Iraq. His family held a private funeral in Westminster. Reverend Fred Phelps, Sr., pastor of Westboro Baptist Church in Topeka, Kansas, staged a protest outside the funeral with signs that read, "Thank God for Dead Soldiers," "Thank God for 9/11," and "Semper fi fags."

Although Lance Cpl. Snyder was not gay, the Westboro church used the funerals of soldiers to protest and "preach a strong anti-gay message," writes Lyle Denniston for the Supreme Court of the United States Blog, "believing that God hates America because it tolerates homosexuality, particularly in the military services."

Although the demonstration was kept a short distance from the church and local laws were not violated, protesters did interact with friends and family members who were both coming and going to the service.

During oral arguments before the Supremes on Wednesday, Denniston wrote:

Westboro Baptists' lawyer and family member Margie J. Phelps, of Topeka, Kan. wanted [a] simple constitutional line -- fitting her version of the facts. Albert Snyder [father of the deceased soldier] had intentionally turned his son's funeral into a public media event and himself into a public advocate, the protesters showed up to debate him on the sins of America and the consequences, and so, to Phelps, the First Amendment provided the usual shield for speech on "matters of public concern."

"We're talking about a funeral," said Sean Summers, the lawyer for the dead Marine's father:

The services for Matthew Snyder were a private event, it was disrupted by private individuals, who had made the private Snyder family its special target for its abuse, so, to Summers, the First Amendment has no role to play. To Summers, there was no public policy issue involved, just a message of personal intolerance.

While a respectful tone was used by the Justices in questions to Summers, a more skeptical manner was evidenced from several of the jurists.

"Chief Justice John G. Roberts, Jr., [repeated] with increasing force the accusation that the Westboro Baptist funeral protesters had singled out the dead soldier's father and the funeral, not to enter a discussion about public affairs including morality, but simply to achieve 'maximum publicity.' Snyder, [Roberts] said, sought only to bury his son, not to make any kind of statement. The Chief Justice was openly skeptical of the small church's claim, made by its lawyer, that 'it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message.'"

Justice Ruth Bader Ginsburg's question was more direct. "This is a case about exploiting a private family's grief. Why should the First Amendment tolerate that?"

"It is an insult to every American who has died for the freedom of speech," said the father of another dead soldier. "No one in the history of the nation has ever protested like this. Don't tell me that my son died for that."

In 1919, the eminent jurist Oliver Wendell Holmes famously wrote of the limits of free speech: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."

But does that standard hold in Snyder v. Phelps? Does not the First Amendment allow the Ku Klux Klan to peacefully march down streets in many American towns? If Pastor Terry Jones followed through with his Koran Burning Day, as promised, would he and the church be liable for any deaths brought about in reaction? We may not agree with either message, but should not the principle be upheld even under the most odorous circumstances?

But what of the grieving families, are they not entitled to the respect, privacy and dignity accorded individuals at a time of great anguish? Is it only about the law?

Write and tell me what you think. I will have more to say on this.

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