Wednesday, October 6, 2010
Background on Snyder v. Phelps, the oral argument discussed above:
Phelps achieved notoriety with his protests at the funerals of military persons. Under the organization of the Westboro Baptist Church, consisting of Phelps and his family, the message of Phelps' protests is "godhatesfags" (which is the name of the website and the motto on the signage). Earlier in his career, Phelps protested lesbian and gay events (full disclosure: a lecture I gave was once picketed by Phelps), including most notably the funeral of Matthew Shepard. More recently, Phelps has directed his protests at funerals of military persons, despite the military's "don't ask, don't tell policy" with regard to homosexuality. Phelps' Brief on the merits argues that the "purpose of picketing in connection with funerals is to use an available public platform, when the living contemplate death, to deliver the message that there is a consequence for sin," and military funerals are appropriate because “when soldiers die in the Iraq and Afghanistan wars, their funerals are highly publicized events, with extensive media coverage of their lives, deaths and funerals.” (Brief at 3-4). As a result of Phelps' picketing, numerous states and localities have passed laws that seek to regulate funeral protests consistent with time, place and manner doctrine under the First Amendment. The case before the Court, however, does not involve a direct application of such a law, but a suit for intentional infliction of emotional distress by Albert Snyder, the father of a soldier who died in Iraq. The jury awarded Snyder over $10 million in damages, the district judge remitted the bulk of the punitive damges for a total award of $5 million, and the Fourth Circuit reversed in an opinion available here.
The case is undoubtedly controversial, as Lyle Dennison at SCOTUSblog discusses. It has attracted a wide array of amicus briefs; an interesting analysis of the amicus briefs in the case (including bestowal of the "Mugwump" award and the "Wait a Minute" award) is from ConLawProf Wilson Huhn.