I would encourage everyone to read the oral arguments. I plan to study them before offering my own thoughts. Free speech is sacred. So is a father's relationship with his son.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-751.pdf

Thank you for posting a link to that, Dana. Prior to find your link, I had heard the condensed questions from the justices. I read the doc, and will refrain from commenting until you have a chance to, first. I am interested to hear your take on this.

Dana thanks for the link as well as showing the rational and logical way to comment on an issue.

I am curious how this has become a free speech issue.

This was not a public event. It was a private event on private propety (a cemetary). To state that anyone can go anywhere and say whatever they want to whoever they want is not free speech.

Can I go next door and stand on the street in front of my neighbors house and issue slurs against his profession and nationality and color if my church decides he's to blame?

What if this church decides next that people of Irish decent are the root of all evil. Can they come to one of my family's funeral and spew their hate and venom there?

I don't think that is what the founding fathers had in mind. Freedom of speech meant freedom of the press, freedom to assemble and protest what our government is doing. Not freedom to tell our fellow citizens how to lead their life. Let's see doesn't that remind anyone of the Taliban???????

Justice Scalia remarked that “simply to say you can have a protest within a certain distance is not to say you can have a protest within a certain distance that defames the corpse.”
Justice Ginsburg told Ms. Phelps that “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 when you have so many other forums for getting -getting across your message,..?”

The editorial board of the Sun opine in a dishonestly titled editorial, “Hateful, but not illegal.” that “the First Amendment’s guarantee of freedom of speech would be meaningless if it didn’t protect the most unpopular and offensive forms of expression.”

I say it was dishonest in its title because it suggests that the legality of the speech was in question before the court. It is not. This is not a case of lawbreaking, it is a lawsuit. And the questions before the court are:

1. Did the Fourth Circuit err in reversing a jury determination in favor of Snyder for the intentional
harm perpetrated against him by the Phelps's?

2. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person
Concerning a private matter?

3. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

4. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

The only First Amendment issue here is the question of whether the speech trumps peaceful assembly, and they are both in the same amendment!

In Hustler Magazine, Inc. v. Falwell the court voted unanimously that Hustler's portrayal of Jerry Falwell was protected speech on the grounds that Falwell was a public figure. Phelps uses the argument that Mr. Snyder made himself a public figure by making some comments to the press on the occasion of his son's death. The court didn't seem to buy it, at least not in the oral argument.

Ms. Phelps would have done better to say that, no; Snyder was not a public figure, but that the speech was nevertheless protected. But even as Justices Kagan and Roberts tried to lead her out of the trap she had set for herself she didn't budge.

The issue of what constitutes a public figure is important because if Mr. Snyder's handful of comments to the press makes him a public figure then all of us here commenting on these blogs run the risk of similar “protected” harassment.

The Sun, like many other news organizations, has signed on to the Westboro side of the argument. It is a peculiar hypocrisy though. On the one hand their terms of service prohibit, rightly in my view, user content that:

“Contains vulgar, profane, abusive, racist or hateful language or expressions, epithets or slurs, inflammatory attacks of a personal, racial or religious nature, is defamatory… violates the privacy rights of any third party, is unreasonably harmful or offensive to any individual or community.”

Yet they stake their honor on protecting the Westboro people and encouraging them to do all of that and more. It seems that the Sun must hold the Phelps' in higher esteem than the readers and posters that support the paper and its advertisers.

Thank you so much for the thoughtful reply, Dana. I also am flummoxed by how many people latch onto a traditional view of this case as being one in which First Amendment rights of freedom of speech or religion are at stake. It is far from the case. And it makes me sad, and frankly very angry, considering that the rights of private individuals mean so little to so many across the political spectrum.

Margie Phelps in her testimony attempted to goad the justices into responding to a religious freedom argument, and the justices wisely didn't engage. Margie made it clear that the Snyders were targeted for maximum publicity reasons, and that the primary goal of Westboro is publicity--not freedom of speech, which is an entirely different matter. Phelps was backed into several corners early by the justices, including the topic of public figures. Particularly when she agreed with the idea that any general set of traits pertaining to any private individual were open to public discussion. More than a bit far-fetched and unreasonable, IMO. Not to mention illogical.

I think that the court will produce a number of decisions against Westboro, and I cannot wait to read the final decisions. But it was also interesting to read Justice Breyer's lines of questioning regarding TV and internet propagation of ideas/message. The US legal system is almost a decade behind other western countries (UK, Switzerland, Scandinavia, Japan, etc.) in addressing how TV and internet impact the spread of ideas and messages, and what exactly that means in legal terms. I hope that some of the decisions will provide suggestions from which to form guidelines.

Yes, the Sun has expressed a double standard, one for itself in the case of bloggers at their various sites and one for the Phelps. Dana, would you call the Phelps' protest peaceful assembly--it seems vituperative, obnoxious and not a bit peaceful. The protest was meaningless and purposeless--it had no achievable goal except to gain notoriety and disrupt the peace--the opposite of a peaceful assembly of a religious group. If America is going to perdition because of gays--and that is what this church believes, then why did its members pick a private funeral for a picket? Why didn't they protest in front of the Pentagon if they felt the military is somehow responsible for this perdition yet to come. I say this was no peaceful assembly. The church's vilification of the Snyders on its website was clearly defamatory. That is not protected speech--it was an inflammatory and provocative display of inexplicable hate and anger in the public domain. This church makes Mr.Snyder a public figure by dragging him into a controversy he did not invite and in a double take this church says an insane protest in the vicinity of a solemn private family event, is a protest against a public person and as such it should be protected. That is a spurious argument and hopefully will be dashed down by the court. By the way, not just the Sun, many newspapers jumped in to defend the Phleps', almost reflexively, because they see any decision against this church as a possible verdict that could affect their own gathering and dissemination of volatile or inflammatory material in the future. The Sun's editorial was hypocritical and not well thought out but only tells you that journalists are monopolistic about the word "speech". In every non threatening situation they see a potential threat for themselves--that restrictive interpretations of the First Amendment could muzzle them or put a scrimp in their ability to communicate unpopular opinions to the larger public. Such an irrational reaction from newspapers--one that has put them on the same side of the fence as the Phelps is tragicomic and makes one wonder about the intellectual prowess of the folks who write for our newspapers and run them.
R Anon

In F.C.C. v. Pacifica the court decided in favor of the F.C.C. Based on a “nuisance rationale under which context is all-important.” It considered such things as time of day, the composition of the audience, and the method of “broadcast.” All of these are relevant to the current case as well. They quoted Justice George Sutherland (Euclid v. Ambler 1926 ) “nuisance may be merely a right thing in the wrong place - like a pig in the parlor instead of the barnyard.”

The Phelps' claim that their purpose was to demonstrate against gays in the military and the Catholic churche's scandals. If that were the case they were clearly putting the pig in the parlor. But that was not the case. Their signs were directed at the corpse of a dead soldier with words like “God hates you,” and “you are going to hell.”

The Phelps' behavior is as theatrical as well as political, and if Mr. Snyder were a politician or if the funeral were a quasi-political event I would support their tactics. Though I abhor everything they stand for I would be compelled to say it was, tactically, not much different than the street theater of the Yippie movement.

Yet even the founder of that movement, Abbie Hoffman, acknowledged that free speech had limits when he said, “Free speech means the right to shout 'theater' in a crowded fire.”

If the court decides in favor of the Phelps' it will set a precedent whereby any fool can harass a neighbor with impunity as long as he says it is for some political or social purpose.

This was an invasion of privacy. “As a tort concept (invasion of privacy), it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one’s seclusion, from appropriation of one’s name or likeness, from unreasonable publicity given to one’s private life, and from publicity which unreasonably places one in a false light before the public.” ( http://www.law.cornell.edu/anncon/html/amdt1dfrag7_user.html#amdt1d_hd19 )

The Sun, in their dubious portrayal of the case, glosses over the point that this case is based on a tort, it is a lawsuit. It is not an attempt to deprive the Phelpses of their rights but to redress the wrong done by them. Nor is it an attempt to re-try the facts that were proved in Mr. Snyder's initial lawsuit. Those facts have not been disputed.

The Sun holds that this is comparable to Hustler V. Falwell. It is not, Mr. Falwell was a public, politically active figure.

The Sun has compared it to a 1977 Neo-Nazi march through Skokie, Ill., that was home to some Holocaust survivors. It is not comparable. This was a funeral, not a diverse neighborhood.

The Sun compares this to burning the “ flag on the steps of the Capitol in Washington to protest American foreign policies.” Let the Sun's editors bury their children beneath the steps of the Capitol before they offer such an idiotic comparison.

As an American I hold our First Amendment in very high esteem. But as inviolate as it is there are circumstances like, slander, obscenity, and “fighting words” where we narrow our view, not to curtail our rights, but to ensure that the rights of others are not curtailed. The court can find against Phelps' without endangering the First Amendment. Or as Justice Anton Scalia once said about making an exception for a Church that used an illegal intoxicant –

“You can make an exception without the sky falling,”

I meant to say,"The Sun has expressed a double standard, one for itself in the case of bloggers at ITS various sites"--also I believe the Phelps will be struck down by SCOTUS.
R Anon

Hopefully the court rules against Phelps and his cult.