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What Supreme Court justices asked at Westboro Baptist Church hearing

Albert Snyder says Westboro Baptist Church protesters ruined his son's funeral. The church says it has a right to free speech. The justices asked a lot of hypothetical questions about what constitutes allowable speech.

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A jury awarded Snyder $11 million in damages. The district court judge reduced the award to $5 million. But a federal appeals court threw the entire case out, citing protections of the First Amendment.

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Ms. Phelps, daughter of Westboro Pastor Fred Phelps, told the justices that the group was careful before the protest to follow all local laws and restrictions. She said they stood where they were told to stand and did not disrupt the funeral.

Mr. Summers disagreed. He said the protest forced the funeral procession to change its planned route to the church. He said the protest degraded and disrupted the entire event.

A lot of hypothetical questions

The justices' questioning of both lawyers was aggressive and nonstop, with frequent hypothetical questions. The hour-long session often resembled a spirited debate more than a high court hearing.

At one point Justice Samuel Alito asked Phelps whether a lawsuit could be filed against someone who accosted a grieving grandmother near the gravesite of her grandson who had been killed in a war overseas. The protester, according to Justice Alito, “speaks to her in the most vile terms … that he was killed by an IED … I am so happy this happened; I only wish I were there; I only wish that I could have taken pictures of it….”

Alito then asked: “Is that protected by the First Amendment?”

It might give rise to a claim of fighting words – that someone was attempting to provoke a fight, Phelps said.

“It’s an elderly person,” Alito added, refining his hypothetical. “She’s really probably not in a position to punch this person in the nose.”

At that point, Justice Antonin Scalia chimed in: “And she’s a Quaker, too.”

The court erupted in laughter.

Phelps said that if the grandmother could bring a lawsuit under those facts it would have to be a very narrow circumstance to survive First Amendment scrutiny. She said that Snyder’s case was different. Snyder was repeatedly interviewed in the media and discussed his opposition to the war in Iraq. That engagement in public discussion invited a response from the Westboro Church, Phelps said.

Snyder’s lawyer, Summers, disagreed. “Mr. Snyder simply wanted to bury his son in a quiet, dignified manner,” he said. Instead, the Westboro Baptist Church hijacked the funeral to maximize the publicity of its staged protest.

“The private, targeted nature of the speech is what makes it unprotected,” Summers said.

After the hearing

After the hearing, both lawyers met with reporters outside the Supreme Court.

Phelps looked over the large bank of cameras and the sea of news reporters and said the media, in particular, have a vested interest in the outcome of the case. “The Fourth Estate ought to be thanking us for the heavy lifting we just did in there,” she said, motioning to the high court behind her.

As to the case itself, she said a victory for Snyder would be a defeat for free speech protections. “There is no line that can be drawn without shutting down a lot of speech,” Phelps said.

The lawyer said the Westboro Baptist Church’s message is unpopular but essential to the salvation of the nation. “Your destruction is imminent,” she said. “When it comes, don’t say the servants of God did not warn you.”

Albert Snyder offered a different view after the hearing. He thanked his lawyers and his supporters and then told the assembled media: “This is something no family should have to endure.

“All we wanted to do was bury Matt with dignity and respect,” he said. “There is a civilized way to express an opinion in America, but it does not involve infliction of emotional distress on a family.”