Saturday, October 09, 2010

Westboro Church's 'Surreal' Day in Court

Over at The Atlantic, Garrett Epps writes about his take on the SCOTUS appearance the other day of the attorneys arguing the Westboro Baptist "Church" and its pending lawsuit by the father of one of the soldiers whose funeral was disrupted by the "God Hates Fags" rantings of some devout Christian "church" members:

More often than one would expect, oral argument in front of the Supreme Court resembles a Celebrity Deathmatch between Lionel Hutz of The Simpsons and Ned Racine of Body Heat. Lawyers with no Supreme Court experience sometimes insist on going to the Show. The result can be a halting hour of argument that sometimes resembles the 1945 World Series, between two teams so war-depleted that sportswriter Warren Brown said, "I don't think either one of them can win it."
In Wednesday's high-profile argument in Snyder v. Phelps, two inexperienced pilots sailed into a legal Bermuda Triangle, where the compasses no longer pointed to magnetic North. It's possible that, once it recovers its wits, the Court will put this case in order; but in the courtroom at least, what seemed at 10 a.m. like a sure thing had become by 11 a.m. a head-scratcher.
. . .
The most logical course for the Court would have been to leave this stinker alone. There's no groundswell of tort actions like this; instead, the reaction in most states has centered on new statutes barring disruption of a funeral. Most of those laws would allow demonstrators considerably nearer the funeral than the WBC pickets ever got. Time enough to test them when a proper case arose. Just last term, the Court had reaffirmed a broad reading of the First Amendment in a much less sympathetic case, United States v. Stevens, which held that videos of animals being killed were, in some cases, protected speech.
But the Court granted cert., and it heard an hour of argument from Sean Summers, a York, PA., lawyer who has represented Mr. Snyder pro bono, and from the soon-to-be-legendary Margie Phelps, a Kansas lawyer who is the daughter of the Church's pastor, Fred Phelps. By the end, the Justices' comments gave the eerie impression that Margie Phelps might have singlehandedly managed to snatch defeat from the jaws of a seemingly all-but-sure victory.
. . .
Then it was Margie Phelps's turn. She looks a lot like someone who would come to your door selling tracts during the baseball playoffs, and her grim, whispery monotone is what I imagine Norman Bates's mother sounded like.
None of that should have mattered; a competent second-year law student could have handled it. One would simply concede that Mr. Snyder is a private person. The issue is the kind of speech. The WBC's speech, disagreeable though it might be to the majority, was aimed at issues of American social and military policy. This kind of speech is fully protected by the First Amendment. Nothing in WBC's signs was directed at Matthew or Albert Snyder personally. Church members never approached the funeral or tried to disrupt it with noise; they did not interact with Mr. Snyder, who never even saw the signs until he read news reports; the "epic" was not sent to Mr. Snyder, simply published on the Internet. Under these circumstances, letting a jury assess a multimillion-dollar verdict is plainly permitting punishment for a distasteful message on a question of public importance. The Snyders' pain is the kind of pain free speech requires us to bear.
Thank you. Sit down.
But Margie Phelps spent most of her time arguing that Mr. Snyder is a public figure because he and his family had spoken to the news media about their grief for their dead son and their horror at the war in which he died. All he had to do was keep absolutely quiet. By making any public comment after Matthew's death, they became fair game for WBC. Over and over the Justices suggested, asked, begged her to assume that Mr. Snyder was not a public figure. Please, they seemed to be saying, we're not buying it, give us some other reason to vote for you. Over and over she refused."They step[ped] into a public discussion," she said.
They had it coming.
As far as this case goes, I think Epps is right in his/her judgment that this was a bad case from the get-go and the Supremes should never have taken it on. As the old saying goes, "bad cases make for bad laws" when it comes to SCOTUS.

That said, I am pretty much an absolutist when it comes to free speech (remember the Skokie case, where the American Nazi Party sued to be allowed to march in Skokie IL, and the ACLU took on the case as a free speech issue? It cost the ACLU a lot of members who resigned in outrage, but I was not one of them.

The actions of the "Christianists" in the military funerals they picket is reprehensible, but it is still protected speech.

But rights are always in conflict -- at least that's the way it should be in a democratic society -- and it's a balancing act to uphold free speech rights for someone while at the same time upholding privacy rights for someone else.

I think that, despite the obvious grandstanding by the Phelps girl, the decision will come down on the rights of free speech. Which is kind of too bad, since the "church" thrives on publicity, and little Margie will be catapulted into her 15 minutes of fame.

All in all, it is a stinker, as the author says, and we would have been better served if they refused cert and let it alone. Attacking state laws on disrupting funerals would have made better case law.


[HT to my buddy Jae over at Jae's Sea for emailing me this story.]