Supreme Court Circus Over Picketing Military Funerals

Send in the clowns….

(For those wanting only the legal stuff, and not my experiences, skip on down to the line break)

Roughly half my friends are lawyers, and the other half are largely military or working for the DoD as civilians. It makes for interesting get-togethers, and I enjoy the way each side approaches things. On the Snyder v. Phelps case though there was near unanimity of thought: Phelps would probably win, but he will always remain an angry reprobate. It has been said that the law is an ass, and in this case, it’s clear that half the litigants were.

Now, going to the Supreme Court always seems a solemn and intellectual endeavor, and so I cut short my libations and reuniting with friends on Tuesday night at a practical time. For those that don’t know, I lived in DC from 1992 through last November, so most of my friends are there. Some of them came out and met me at a sports pub the night before attending the oral argument, and we talked about the case. But, before 9 p.m. I went to get some rest.

So, I awoke early yesterday and got on the metro headed down to the Supreme Court building on First Street. I suppose for a law school grad this is the equivalent of going on a Hajj, so I was all set with everything I would need. Had a suit and tie on (I even ironed it for this occasion), my BlackBerry on vibrate, and a pen and pad of paper. While it was only a veneer, I made a reasonable facsimile of an actual reporter.

As I came out of the metro and began the short two-block walk to the building, I fell in behind a middle-aged couple visiting from Kentucky. When we all stopped to cross a street with one block to go we could already see the ubiquitous police lights beckoning us from up ahead. The husband pondered just “what in the hell is going on up there?” I informed him that the freak show he was about to approach was the Snyder v. Phelps case, or, more accurately I told him: “The God Hates Fags people are squaring off against a Gold Star Dad.” The wife harrumphed, said something insulting about the Phelps coterie, and asked if they could get to the Capitol Visitor’s Center without going past this circus. I pointed the way and they thanked me.

I’m pretty secure in my masculinity (excluding the rather odd comments I make about Tom Brady); yet it is difficult when encountering a group of people not to notice the nearly-naked man wearing boxer-briefs and holding a large sign reading “Fred Phelps wishes he were hot like me.” The “hot” was offset with some sort of flames or something. Looking back now, I am rather perplexed at the choice of undergarment. The Supreme Court seems like more a place for boxers, maybe with cartoon figures on them. Or go whole hog and wear like a Speedo or something. The boxer/briefs struck me as akin to a kid getting a shot and while trying to act brave, still flinched at the end. Either way, this chap was likely on to something, as he had his picture taken with nearly every lady there.

The Phelps folks acted as you might imagine. In case your imagination is somewhat stunted, here’s a video that shows some of these knuckleheads, from WBAL in Baltimore:

My wife always makes a distinction between “time” and “Mothax time.” At Mothax 9:15 a.m., actual time about 8:45, I proceeded inside as instructed by the letter I was carrying from the Supreme Court Public Relations lady, and reported in. There’s a small room set up with a ton of cubicles for reporters covering the Supreme Court. Everyone there appeared to know exactly what they were doing, while I looked roughly as comfortable as Elton John at a NASCAR race. I decided to scoop up all the written materials they had on the case, and beat a hasty retreat to a bench outside the Supreme Court cafeteria. (For those curious, no, they don’t have cool names of food there. I was hoping to get a heaping plate of “Ginsburg Flapjacks” or something.)

One thing I found somewhat odd: I was the only person wearing lapel pins. I don’t know if I broke some rule I wasn’t told about, but I went in with a CIB on, my Legion lapel pin, and a pin that features the American Flag with the “Big Red” flag of my alma mater, The Citadel. I noticed that no one else had any on, and I kept trying to figure out if I should discreetly remove them, or wear them. I was like the kid in 4th grade about to get his picture taken and figetting and holding his hands in front of him. Not everyday you get to go into the Supreme Court building.

Anyway, I had a pleasant surprise as I read through the documents and I heard someone call out my name: my writing professor from law school. Everyone always talks about a teacher that had some monumental impact on their life, but I never really had that until law school, when I had three. The first was former Secretary of the Army and Ford Cabinet official, Jack Marsh, who not only was my homecoming speaker when I returned from A-Stan, but would later give me an A in “Technology, Terrorism and National Security Law” for a paper I wrote on using private military firms to combat maritime piracy. The second was former Virginia State Solicitor General William Hurd, my Freedom of Religion professor, who actually just recently filed an amicus brief in support of the Commonwealth of Virginia’s suit against the Obamacare individual mandates. And the last was Kate McSweeny, who informed me she was being sworn into the Supreme Court Bar that day. I got to meet her dad, Bill (who appears to be the youngest Korean War vet I ever met), her mom, and a third gentleman whose name I missed. This guy had eyes that seemed to absolutely bore through me, and I mentioned it to Kate in an email later. That was when she told me that the man was William Sessions, the former director of the FBI. Well, that would explain his intensity. When I talked to him I felt like I should admit everything bad I had ever done and proclaim myself a moron to disabuse him of the notion that I was worth interrogating. And that was before I knew he was a former FBI director.

Anyway, at long last we were called upon to head on into the sanctum sanctorum of all things legal, and this is when it took a turn for the worse. Sitting in the press section of the Supreme Court and watching the case is most analogous to going to Fenway Park and watching the game from the restroom: only this was slightly less comfortable. I was sandwiched on a small wooden seat that might or might not have come from a serial killers log cabin somewhere, between a rather husky guy from a radio station in Baltimore and a young lady who is an intern for some Baptist news group. The seat gave me roughly 20 inches across, and my wing-span at shoulder level is about 30 inches. Directly in front of me, probably less than 18 inches away, was a gigantic Corinthian pillar that was about 5 feet in radius. At one point during the hearing I did a quick cross-border raid into my neighbor’s personal space, and made out Justice Sotomayor’s right shoulder. That quick glimpse would represent my only view of any Justice.

I’ll get into the arguments made in a second, but I can’t stress enough how uncomfortable it was in there. I really appreciated the Supreme Court getting me in, but I am not well versed enough on the tenor of Supreme Court voices to even know who was speaking at any given moment, with the exception of Kagan, whose New York accent was identifiable, and Scalia, whose tenor suggested that if he didn’t get an answer to his question he might bludgeon the recipient of his question with a bronzed copy of the Constitution. I largely pieced together who asked what later on, but if there are errors in here, my sincere apology.

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The hearing was exactly an hour. There was the preliminary matter of swearing in the new folks to the SC bar (Kate was first) and then they launched right in with Sean Summers, who was arguing on behalf of Albert Snyder. He made it about two sentences into his prepared remarks before he was interrupted.

One of the documents that we were given prior to heading in was a primer with the heading “Case at a Glance” which laid out the basic arguments. According to this document, the Court granted a writ of certiorari to address three issues:

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

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

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

That is all fine and good, but almost none of the questions directed at either Mr. Summers, or Ms. Margie Phelps really touched on those issues. The questions kind of danced around these issues, but they never quite came out and asked “Does the freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?” On account of my discomfort in the seat, and my ADHD, my notes are sporadic, but what follows are some of the issues I managed to capture in my notes. If one cares to read the entire transcript, you can do so here. I will be taking a lot of what follows directly from the transcript, so am providing page numbers if you want to go back and read the context.

The first interesting thing to happen was Justice Ginsburg questioning Mr. Summers on whether, in light of the fact that the Phelps’ had protested earlier in the day at the State Capitol in Maryland, and at the Naval Academy, whether they could have gotten an injunction stopping the protest prior to the funeral.

Summers: I don’t think they could have beforehand because although you said we knew what the signs were going to be, generally from their pattern I think we could guess what the signs may have been, but you don’t really know what the signs are going to be until they show up. For example, in this case, they had a sign that said “three straight boys,” they had a sign that said “God hates you, you are going to hell.”

(Page 8)

Justice Alito noted that some of the signs referred to “you” and he wondered if the “you” could be determined by also looking at the “Epic” that was written. (You can read more about the Epic here, but I urge you not to if it will make you unduly angry.)

JUSTICE ALITO: Do you think that the epic is relevant as an explanation of some of the these arguably ambiguous signs that were displayed at the funeral? For example, “You are going to hell,” “God hates you”; who is “you”? If you read the epic, perhaps that sheds light on who “you” is.

Mr. SUMMERS: It can shed light, but if you put this in the context of a funeral-goer, Justice Alito, what you have is — it was a typical funeral, family members driving in and –

JUSTICE ALITO: Well, yes, but the signs say “you” and the argument is made “you” doesn’t mean Matthew Snyder; it means a larger group. And then you have the epic, which is directed directly at Matthew Snyder. Doesn’t that show — shed light on what “you” meant on those signs?

MR. SUMMERS: Correct, and that’s where I was going to go with that, Justice Alito. The epic specifically referenced Matthew Snyder by name, specifically referenced Matthew’s parents by name. So in our judgment, and the defendants testified that the epic sort of explained, at least in their explanation, explained the funeral protest itself.

(Page 10-11)

Now, although I couldn’t glean most of the Justices opinions from the questions, Breyer had a sort of interesting soliloquy that seemed to indicate his opposition to Snyder’s case:

JUSTICE BREYER: Okay. So now we have two questions. One is under what circumstances can a group of people broadcast on television something about a private individual that’s very obnoxious, because at the funeral you say that — and I accept that from your point of view — that is very obnoxious. And the second is to what extent can they put that on the Internet, where the victim is likely to see it, either on television or by looking it up on the Internet?

Now, those are the two questions that I am very bothered about. I don’t know what the rules ought to be there. That is, do you think that a person can put anything on the Internet? Do you think they can put anything on television even if it attacks, say, the most private things of a private individual? Does Maryland’s — does Maryland’s law actually prohibit that? Do we know it does, and what should the rules be there?

Have I said enough to get you talking?

(Page 13)

I think he probably did give Mr. Summers enough to work off there, but alas, he was interrupted almost immediately by another Justice’s question, so we never truly got to the heart of the Snyder response. Although they did circle around to touch on it briefly:

CHIEF JUSTICE ROBERTS: Okay. Were you finished answering Justice Breyer’s question?

JUSTICE BREYER: The more you say about this the happier I will be, because I’m quite interested.

MR. SUMMERS: The private targeted nature of the speech in our judgment is what makes it unprotected. So for example, the epithets directed at the family would be unprotected. If, for example, a person repeatedly put on the web site that Mr. Smith has AIDS, whether it’s true or not, essentially at some point in time it might rise to the level of an intentional infliction of emotional distress. There would have to be other facts combined there.

(Page 14)

Now, you probably can just read the transcript to get all of what I am saying here, but I will try to boil the remainder down to a few other instances. There was one moment of comic relief that I wanted to include, and it followed a hypothetical by Justice Alito. It dealt somewhat with the “Fighting Words Doctrine” which comes from the Chaplinsky case.

JUSTICE ALITO: All right. Well […] [l]et me give you another example along the same lines.

Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED. And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home. And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do? Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it. And on and on.

Now, is that protected by the First Amendment? There is no false statement involved and it’s purely speech.

MS. PHELPS: Right. And — and it may give rise to some fighting words claim, depending on the proximity and the context. And I would have to know what –

JUSTICE ALITO: Well, it’s an elderly person. She’s really probably not in — in a position to punch this person in the nose.

JUSTICE SCALIA: And she’s a Quaker, too.

(Laughter.)

MS. PHELPS: Yes. Let us assume that the grandmother had not done what Mr. Snyder did in this case. Mr. Snyder from the moment he learned of his son’s death went to the public airways multiple times in the days immediately before and immediately after….

(page 32)

Overall, I thought Mr. Summers did a great job of answering the questions that were posed, although he did come off a bit timid at times. Hell, I would have too if faced by nine of the smartest people in the world. Ms. Phelps somewhat surprisingly came across very calm, cool and collected, but she had this inexplicable aversion to answering any hypothetical posed with an actual answer. Whereas Summers was standing toe to toe and responding to each question, and taking a few shots in the process, Phelps seemed to duck and weave like Ali, without delivering a single shot.

Take for instance the response regarding that hypothetical:

CHIEF JUSTICE ROBERTS: The person selects the grandmother because he thinks that will give maximum publicity to his views. Now, is — does the First Amendment bar that cause of action or not?

MS. PHELPS: If the grandmother entered the public discussion, the First Amendment bars it.

CHIEF JUSTICE ROBERTS: Well, no –Justice — Justice Alito posed, the grandmother was returning from the grave of her grandson. She didn’t enter the public discussion at all. So I’m anxious to determine whether in those circumstances you think the First Amendment allows that cause of action or not.

MS. PHELPS: I am reluctant to say that it does not, Mr. Chief Justice. However –

JUSTICE GINSBURG: But you gave the answer before about — you said stalking.

MS. PHELPS: Right.

JUSTICE GINSBURG: Isn’t this comparable to stalking?

MS. PHELPS: And that’s what I was trying to liken it to, and that’s what it sounds more like to me.

CHIEF JUSTICE ROBERTS: Do you think it satisfies the normal tort or law against stalking for someone to come up to an individual and engage in discussion? I thought a lot more was required.

MS. PHELPS: Well, Mr. Chief Justice, I would not file that claim for that person, for that elderly grandmother. I am not prepared, without knowing more, to say absolutely there could be no cause of action. What I am prepared to say is there was absolutely much more than that in this case.

(Page 33-34)

See what I mean? She never really answered much of anything.

Anyway, two last comments about Ms. Phelps. As I said, she came off reasonably well, not the shrieking harpy that you can see here at about the 4 minute mark:

Now, first, it appeared like Westboro might be augmenting their income from these lawsuits by teaching slang or something, because Margie used the phrase “up close in their grill” no fewer than three times. Which marks the first three times I’ve ever heard a non-adolescent speak like that. Take for instance this tête-à-tête between Justice Alito and Margie:

JUSTICE ALITO: So let me — let me give you this example. Suppose someone believes that African Americans are inferior, they are inherently inferior, and they are really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred.

Now is that in — this is just any old person on — any old African-American on the street. That’s a matter of public concern?

MS. PHELPS: I think the issue of race is a matter of public concern. I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.

(Page 39-40)

Odd, no? What made me mad repeatedly though was Margie’s trying to portray this as a David v. Goliath matchup with Westboro Baptist Church playing the part of the future King of Israel. Before I go into that, let’s look at the facts. On the one side we have Albert Snyder, a man who just wanted to remain largely anonymous in York, Pennsylvania, an educated man, but not a lawyer. On the other side we have the Westboro Baptist Church with around 70 members, a large portion of which have law degrees. To take the David and Goliath thing a step further, Al Snyder never appeared on the Topeka steps of the church demanding that WBC send out a champion, the man just wanted to bury his son in peace.

Margie uses the phrase “little church” five times, like here where she is again discussing the “fighting words” argument:

MS. PHELPS: That’s where I particularly think, although Chaplinsky would have suggested in some broad language you would go that way, you have not gone that way in any of the cases. And again, I have to reiterate, you have required immediacy and intent.

Whether a fight ensues or not, I do understand that hasn’t been pinned down as a requirement. But in intent, it’s your purpose, is to mix it up with somebody, not to go out and say: Nation, hear this little church. If you want them to stop dying, stop sinning. That’s the only purpose of this little church. 1,000 feet away could not possibly be fighting words.

(Page 43-44)

Anyway, I found that line of thinking asinine, and perhaps Ms. Roper has the roles reversed from our Biblical story.

A good friend of mine is of the opinion that the WBC is itself a complete fiction. He doesn’t believe it is a “Church” at all, in that there is no over-arching theological view that guides their action. Fred Phelps made his money filing law suits in Civil Rights cases back in the late 60’s and early 70’s. In fact, as this article from the Capitol Journal explains, he even represented a majority black American Legion post:

Before he was disbarred and surrendered his law license, Fred Phelps gained a reputation as a sharp, competent civil rights attorney whose eloquent and fiery orations mesmerized juries.

“You always had to be ready for him,” a veteran lawyer in Topeka said.

Phelps was considered a gifted and skilled trial lawyer, one of the best in eastern Kansas. […]

After police and sheriff’s deputies raided the Jordan-Patterson American Legion Post, 811 S.E. 15th, on June 28, 1979, Phelps filed suit, representing several clients.

Shawnee County sheriff’s deputies, aided by Topeka police officers, were seeking drug dealers when they raided the predominantly black club. About 20 people were arrested, including five for concealed weapons and two for marijuana possession. No felony convictions resulted from the raid.

During the raid, 50 to 60 female patrons were strip-searched. Customers in the club filed 20 lawsuits in state and federal courts alleging bar patrons were illegally strip-searched, detained, and treated in a threatening and abusive manner because they were black. At least two clients represented by Phelps’ family law firm received settlements of $8,000 from the city and county commissions before the suits were to go to trial.

Anyway, my friend’s theory is that they put themselves in these positions to try to force something that will eventually yield them some sort of Rainmaker award. The argument certainly has merit and clearly the military things so, as this report from the Navy (by way of Blackfive) makes clear:

2.A. A GROUP FROM WESTBORO BAPTIST CHURCH (WBC) LOCATED IN TOPEKA, KANSAS HAS PROTESTED OR IS PLANNING TO PICKET AND PROTEST AT PUBLIC FUNERALS OF PERSONNEL KILLED IN THE WAR ON TERRORISM. THIS GROUP HAS REPORTEDLY ANNOUNCED VIA THEIR WEBSITE THAT THEY INTEND TO PROTEST FUNERALS IN ALABAMA, CALIFORNIA, DELAWARE, IOWA, IDAHO, ILLINOIS, KANSAS, MICHIGAN, MINNESOTA, NEW YORK, PENNSYLVANIA, WISCONSIN, AND WEST VIRGINIA.

2.B. THERE IS NO INFORMATION TO INDICATE THAT THIS GROUP PLANS ANY FORM OF VIOLENT ACTIVITY AND THEY ARE NOT KNOWN TO INITIATE PHYSICAL CONTACT. HOWEVER, THIS GROUP DOES EMPLOY PASSIVE-AGGRESSIVE TECHNIQUES INTENDED TO PROVOKE A HOSTILE RESPONSE OR OFFENSIVE REACTION FROM OTHERS. THEY WILL EMPLOY WRITTEN AND VERBAL INFLAMMATORY LANGUAGE AGAINST THE DECEASED PERSON, THEIR FAMILY, AND MILITARY PERSONNEL TO ELICIT DESIRED RESPONSES. THIS GROUP WILL THEN FILE A CIVIL ACTION IN AN EFFORT TO REACH A SETTLEMENT IN ORDER TO FUND FUTURE ACTIVITIES.

Mind you, I think the rank and files minions out there with the signs have bought into this thing lock, stock and barrel, but I would be hard pressed to see where what they are doing makes any rational sense outside of some pecuniary hope. I discussed this theory with my wife this morning who agreed with my friend: “yeah, it’s all money-making hokum.” Which marks the first time I have heard “hokum” used outside of the Big Bang Theory.

So, what did I take away from this experience? Well, a lot actually. I got to see my friends, to meet some interesting people, see a man in poorly conceived attire that is probably suffering hypothermia today, and to hear our supreme legal authority as they discussed a case of such import to what I do at work. I felt rather let down by the questions and answers, but there is no detracting from the aura of consummate eminence that you get while being there. However the Court decides, and I fear it will be against Mr. Snyder, I hope that he finds peace, and that perhaps this will mitigate the damage that WBC brings to other families. But, alas, I am less than sanguine on the possibilities of that last hope.