Lawyer ably represents family, First Amendment

Thursday, October 7, 2010

  • Audio of oral arguments
  • Transcript of oral arguments

    WASHINGTON — All eyes were on Margie Phelps yesterday as she stood before the Supreme Court and defended the virulent anti-gay demonstrations staged by her father’s Kansas church at military funerals as a legitimate form of expression that deserves First Amendment protection.

    Would Phelps, who has joined in similar demonstrations herself, show her temper or start preaching to the justices about the evils of homosexuality? In the case before the Court, Snyder v. Phelps, Albert Snyder, the father of a Marine killed in Iraq, is seeking to revive a tort action against Westboro Baptist Church of Topeka, Kan., for intruding on his son’s funeral in 2006. Phelps’ job was to convince the Court that the suit is barred by the First Amendment.

    To the relief of First Amendment advocates, during her half-hour at the lectern Phelps — the daughter of the Rev. Fred Phelps — held her temper, although it seemed sorely tested at times. And she only briefly brought God into the argument, as when she described Westboro as “a little church where the servants of God are found.” She also tried to justify the demonstrations by saying God is punishing America for its sinful embrace of homosexuality by killing its soldiers. “If you want them to stop dying, stop sinning. That’s the only purpose of this little church,” she told the Court.

    That seemed to do little to temper the Court’s disdain for funeral protests. Justice Stephen Breyer called the demonstrations “very obnoxious,” and Justice Ruth Bader Ginsburg said, “This is a case about exploiting a private family’s grief and the question is: Why should the First Amendment tolerate exploiting this Marine’s family?” Chief Justice John Roberts also said, “Mr. Snyder was selected not because of who he was, but because it was a way to get maximum publicity.”

    Still, Phelps may have done what she needed to do to win the case. She seemed on solid footing with her knowledge of First Amendment doctrine, as she waved the justices away from any notion that the demonstrations amount to incitement or fighting words. “I am not a fan of the fighting-words doctrine,” she said at one point. “I do think it has problems. I just don’t think it applies in this case.”

    She also insisted that the church’s message involved public matters and was not just private speech that could be the target of a tort suit. “This Court has given substantial, longstanding protection to speech on public issues,” she said, “and how could it be gainsaid that the dying soldiers is not on the lips of everyone in this country? And it is a matter of great public interest and why they are dying, and how God is dealing with this nation.”

    That may be a zealot’s definition of public interest, but it might be enough to give the justices pause before they allow lawsuits to punish such expression. She also was effective in defusing the notion that funeral attendees were a “captive audience,” another factor in the tort suit. The demonstrators were too far away from the funeral for that definition to apply, she said. “You’ve got to be up … in your grill,” she said.

    Phelps had the gumption as well to take on a hot potato issue that most of the briefs on her side avoided: she argued that Albert Snyder was a public figure. She said several times that Snyder was “in the public airwaves repeatedly,” giving interviews to the media not just about his son but about the nation’s war policies. If Snyder had not spoken out, she suggested, the church would not have picketed the funeral.

    In an analysis of the arguments for The Atlantic, scholar Garrett Epps said Phelps’ strategy of hammering away on the “public figure” point was a mistake, and the justices would not buy it. But even if the justices don’t agree that Snyder was a public figure, her repeated efforts to portray the demonstration as part of a public debate over public issues may take the edge off an opinion that would otherwise allow punishment of funeral demonstrations through the tort system.

    It may also give support to a position Justice Ginsburg seemed to articulate: that state laws might be sufficient to protect the privacy of funeral-goers, rather than lawsuits. She suggested that the Westboro demonstrators were far enough away from the Snyder funeral that they would have complied with the Maryland law restricting funeral protests. She said she doubted that someone could be fined through a tort action for something that did not violate the law on funeral protests.

    It is rare and risky for a lawyer to argue her own case before the Supreme Court. The last time it happened in a major case was 2004, when Michael Newdow argued against the words “under God” in the Pledge of Allegiance in Elk Grove Unified School Dist. v. Newdow. Newdow too kept his passions in check, but still was able to convey to the justices why an atheist like himself was harmed by the daily recital of the Pledge containing the words “under God.”

    Newdow lost for other reasons, but his argument was not nearly the train wreck that many had anticipated.

    Similarly, Margie Phelps may have been able to convey the motivation behind her family’s protests in a way that a veteran Supreme Court advocate could not. Whether that turns out to be a winning strategy won’t be clear until the Court hands down its decision, probably months from now.

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