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."
That's almost unthinkable to lawyers whose practice centers around torts; but it's not an unusual situation in the First Amendment area. That was the tenor of the questions by Justice Scalia, as well as by Justices Ginsburg, Sotomayor, and Kagan (participating with visible buoyancy in her first really cool case). Justice Alito (the lone dissenter in the animal-video case) seemed sympathetic to Mr. Snyder; so did Justice Breyer, who asked Summers to help him formulate a rule of law that would permit recovery for outrageous statements about private figures on the Web or broadcast TV. Summers didn't have a rule ready.
Then it was Margie Phelps's turn. She looks a lot like someone who would come to your door selling tracts during the baseball playoffs, and her grim, whispery monotone is what I imagine Norman Bates's mother sounded like.
None of that should have mattered; a competent second-year law student could have handled it. One would simply concede that Mr. Snyder is a private person. The issue is the kind of speech. The WBC's speech, disagreeable though it might be to the majority, was aimed at issues of American social and military policy. This kind of speech is fully protected by the First Amendment. Nothing in WBC's signs was directed at Matthew or Albert Snyder personally. Church members never approached the funeral or tried to disrupt it with noise; they did not interact with Mr. Snyder, who never even saw the signs until he read news reports; the "epic" was not sent to Mr. Snyder, simply published on the Internet. Under these circumstances, letting a jury assess a multimillion-dollar verdict is plainly permitting punishment for a distasteful message on a question of public importance. The Snyders' pain is the kind of pain free speech requires us to bear.
Thank you. Sit down.
But Margie Phelps spent most of her time arguing that Mr. Snyder is a public figure because he and his family had spoken to the news media about their grief for their dead son and their horror at the war in which he died. All he had to do was keep absolutely quiet. By making any public comment after Matthew's death, they became fair game for WBC. Over and over the Justices suggested, asked, begged her to assume that Mr. Snyder was not a public figure. Please, they seemed to be saying, we're not buying it, give us some other reason to vote for you. Over and over she refused."They step[ped] into a public discussion," she said.
They had it coming.
The unease on the bench was palpable. Perhaps most significantly, Justice Kennedy, the swing vote, asked whether WBC could simply "follow a particular person around, making that person the target of your comments." Phelps's answer was, in essence, I already told you they had it coming.
It may be that Margie Phelps by the hour's end had not kicked away her case. But her argument was so poor that I found myself wondering whether she even wanted to win. WBC is quite frank about hating everything about the United States--everything, that is, except the First Amendment. "The Supreme Court will remind this nation that you don't have mob rule," Margie Phelps told CNN last March.
But a nation under God's curse can't have a righteous Constitution, surely? In fact, she suggested, the First Amendment is part of God's plan to smite Sodom. "When the Supreme Court (holds for us), it's going to put this country in a rage, and we will be expelled," she said. "But whenever it was time for an epic event in the Bible, the thing that happened right before is the prophets were removed from the land, and that's what's going to happen to us."
But historically, losing a case in the Supreme Court is a better way to be persecuted. Ask the Jehovah's Witnesses.
Alas, there's really no need for a theological conspiracy theory. Trial lawyers often really do love their own clients and hate the people on the other side, and often can't shut up about it. Which it is why both sides would have done better to find dispassionate appellate lawyers, who might have saved us from the possibility that a disgusted Court may make a bad decision.