Two U.S. Supreme Court justices, both strong advocates for the First Amendment, said during a hearing of a case about protests at a Marine’s funeral that they thought people could be sued for outrageous personal attacks leading to speculation that the Court will establish a new limit to free speech. -db
The Los Angeles Times
Analysis
October 6, 2010
By David G. Savage
WASHINGTON, D.C. — The Supreme Court justices, hearing arguments Wednesday in a funeral protest case, sounded as though they are inclined to set a limit to the free-speech rule to permit lawsuits against those who target ordinary citizens with especially personal and hurtful attacks.
The First Amendment says the government may not infringe the freedom of speech, but it is less clear whether it also shields speakers from private lawsuits.
At issue Wednesday was whether the Maryland father of a Marine killed in Iraq could sue a Kansas family which protested near his funeral. The Phelps family not only held signs that said “Thank God for IEDs,” but they also put on their website a message that accused Albert Snyder of having raised his son “to defy the Creator” and “serve the devil.”
A Maryland court awarded Snyder $5 million in damages, but the award was thrown out on free-speech grounds.
Justices Anthony M. Kennedy and Stephen G. Breyer, usual defenders of the First Amendment, said they thought people could be sued for outrageous personal attacks.
Kennedy said “certain harassing conduct” was not always protected as free speech. “Torts and crimes are committed with words all the time,” he said, referring to legal wrongs that result in lawsuits. “The First Amendment doesn’t stop state tort law in appropriate circumstances,” Breyer commented later.
Though the case is about funeral protests, Breyer said the court’s ruling will have an impact on the Internet, since it tests whether personal attacks can lead to lawsuits.
Snyder sued the Phelps family under a common provision of state law that permits claims for an intentional infliction of emotional distress.
During Wednesday’s argument, the justices seemed to agree that a general protest sign, such as “Stop the War” or even “Thank God for Dead Soldiers” would be protected as free speech. The Phelps family crossed the line when they made clear they were targeting the dead Marine’s father with their protest, argued Sean E. Summers, a lawyer for Snyder. “We have personal, targeted epithets directed at the Snyder family,” he said.
New Justice Elena Kagan drew the attention of her colleagues with her opening question to Margie J. Phelps. The Kansas lawyer who was defending her family began by saying their protests were intended to provoke “public discussion” about the wars in Iraq and Afghanistan
Kagan quickly pressed her. Would it be permissible, she asked, for the protesters to pick out “a wounded soldier and follow him around,” holding “offensive and outrageous signs” near his home and calling him a “war criminal?” In such a case, “does he have a claim for intentional infliction of emotional distress?” Kagan said.
Phelps hesitated, but then said no. “My answer, Justice Kagan, is: No, I don’t believe that person should have a cause of action.”
That answer appeared to turn the argument against Phelps and the funeral protesters. Later, Justice Samuel A. Alito pressed her with another such example.
Suppose protesters stopped a grandmother whose son had been killed in the war, and they “speak to her in the most vile terms” and say they were “happy” he was killed. Is this protected free speech? Alito asked.
Phelps responded calmly, but avoided a direct answer. It might be illegal “stalking” or “fighting words.”
Alito dismissed the “fighting words” defense. “It’s an elderly person. She’s really not in a position to punch this person in the nose,” he said.
Only Justice Ruth Bader Ginsburg took the free-speech side throughout the argument. She noted that protesters were kept away from the funeral in this case, and they were being sued only because of their troubling message.
Breyer and several others said they were looking for a middle ground that would allow the Snyders to win, but not threaten wide-open public debate. “What I’m trying to accomplish is to allow this tort to exist, but not allow it to interfere with an important public message,” he said.
It will be several months before the court rules in Snyder vs. Phelps.
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