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.
Snyder concerns the Westboro Baptist Church, which is basically the extended Phelps family of Topeka, Kansas. Convinced that God abominates homosexuality, the WBS pickets the funerals of American service personnel (gay or straight) killed in Afghanistan and Iraq, holding signs like GOD HATES FAGS, THANK GOD FOR DEAD SOLDIERS and YOU'RE GOING TO HELL. The rationale is that America is Sodom and we all better repent wicked soon.
In 2006, WBC arrived in Westminster, Maryland, to picket the funeral of Lance Cpl. Matthew Snyder, a 20-year-old Westminster native who died in Iraq. The WBC pickets were kept at a 1000-foot distance from the church itself, and were shielded from view by a group of motorcycle-riding veterans, but the funeral procession was diverted from one church entrance to another in order to avoid them, and Matthew Snyder's father Albert saw the tips of the signs when he entered and left the church.
A week later, the Church posted an "epic" on their website, purporting to tell the life story of Matthew and of how his family raised him to "defy his creator" and "taught him that God was a liar." Albert Snyder found the "epic" in a Google search for news about his son.
Mr. Snyder sued the Church in federal court for the common-law tort of intentional infliction of emotional distress, which punishes those who deliberately inflict psychic pain on others by "outrageous" conduct. WBC moved to dismiss the case on First Amendment grounds, but the District Court allowed it to go to trial. The jury awarded Albert Snyder nearly $11 million (the judge reduced this to $5 million). The Fourth Circuit reversed, relying on a famous case called Hustler Magazine v. Falwell, in which the Court had held that a plaintiff could not win an intentional-infliction verdict based entirely on public speech (in this case, a scabrous magazine parody ridiculing the Rev. Jerry Falwell as an incestuous drunkard) unless he can show that the speaker made a false statement of fact. Since the parody itself was labeled NOT TO BE TAKEN SERIOUSLY, Falwell lost.
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.
Albert Snyder's best argument was that, unlike the Rev. Jerry Falwell, he was a private figure who should not have to overcome the high barrier of the Hustler case. The Fourth Circuit had reasoned that the Hustler rule "does not depend on the public or private status of the speech's target." Summers warned the Court that "Under the Fourth Circuit's interpretation of these facts, Mr. Snyder has absolutely no remedy, none. He is a private figure, a grieving father, and he is left without any remedy whatsoever."