Supreme Court ruling protects anti-gay protests at military funerals

WASHINGTON — In a ringing endorsement of free speech with an outcome that few liked, the Supreme Court on Wednesday said anti-gay protesters who picket the funerals of U.S. soldiers with signs such as "Thank God for Dead Soldiers" cannot be sued.

Chief Justice John Roberts, who has championed the First Amendment, cited past rulings that shielded offensive words and outrageous protests: the decision that freed protesters who burned the American flag and another that protected a Hustler magazine cartoonist who portrayed the Rev. Jerry Falwell in an outhouse.

Roberts last year spoke for the court in striking down on free-speech grounds a law that made it a crime to sell videos of illegal dog fighting. He also joined the free-speech majority that gave corporations and unions a right to spend unlimited sums on campaign ads.

"The bedrock principle underlying the First Amendment," Roberts said in quoting the flag-burning ruling by liberal icon William Brennan, is that the government cannot punish words or ideas "simply because society finds the idea itself offensive or disagreeable."

The 8-1 decision Wednesday drew protest from Justice Samuel Alito, who said the man who sued the protesters, the father of a dead Marine, was "not a public figure" who would be expected to tolerate such an onslaught but a private person who sought to "bury his son in peace."

Veterans also found it hard to square the majority opinion with the constitutional right that they swore — and for which many have given their lives — to protect.

"We fought for the right to freedom of speech, but we need to strike a balance between protecting free speech and protecting grieving families," said Paul Rieckhoff, executive director of the Iraq and Afghanistan Veterans of America, a support group.

Military families and their advocates were disheartened.

"It is a sad moment for families of America's fallen military," said Ami Neiberger-Miller, a spokeswoman for TAPS, the Tragedy Assistance Program for Survivors, an emotional support group for military families.

The church picketed her brother's funeral in Florida in 2007. He was a 22-year-old Army specialist killed in Iraq.

"Many of our families have been brutalized by this group, often only days after they found their loved ones have died," Neiberger-Miller said.

First Amendment scholars, meanwhile, offered a weary but knowing shrug.

Far from being a landmark legal decision, they said, the Supreme Court ruling was conventional and not unexpected.

"What people have to realize is, the time we need free speech is when the speech is really unpleasant," said Susan Low Bloch, who teaches constitutional law at the Georgetown University Law Center. "You often have to hold your nose and say, this is what we have to put up with to make sure we have the space to have a discussion. It's going to involve protecting some really ugly speech."

The decision does not appear to affect laws in Washington and 42 other states that seek to keep protesters away from military funerals. The court has said officials may regulate where marches and protests take place, so long as they do not ban them or their message entirely.

The justices Wednesday threw out an $11 million jury verdict against Fred Phelps and the Westboro Baptist Church from Topeka, Kan. The fundamentalist church, founded in 1955 by Phelps, has about 70 members, about 50 of whom are Phelps' children, grandchildren or in-laws.

Albert Snyder, a Maryland father, sued Phelps and his daughters five years ago after they picketed near the funeral service for his son, Marine Lance Cpl. Matthew Snyder, who died in Iraq in 2006. Police had kept the pickets at least 200 feet from the funeral procession. Weeks later, however, Snyder saw a posting on Westboro's website that scorned him and said he had raised his son to serve the devil.

As Roberts noted, the Westboro church believes this nation "is overly tolerant of sin" and "God kills American soldiers as punishment."

A jury awarded Snyder damages for emotional distress, but a judge reduced the amount to $5 million. A U.S. appeals court, siding with the Phelps family and the First Amendment, said the verdict could not stand.

The issue was difficult for the Supreme Court because the public picketing was targeted at a private, family funeral. Had Phelps and his clan confined their picketing to the Pentagon or to Capitol Hill, no one would have questioned their right to carry the signs.

Lawyers for the father argued the verdict should stand because Snyder was a private figure, not a public person, and because the protest was a targeted assault on a private memorial service. But the lawyers also made a crucial misstep. They did not mention the hurtful website message posted by Shirley Phelps in their initial appeal, and Roberts said the justices decided to exclude that matter.

In the end, the justices concluded the picketing was more of public protest than a mean-spirited private assault. The church's funeral picketing "is certainly hurtful, and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner," Roberts wrote.

Material from The Seattle Times archive is included in this report.