Ken Klukowski

This may have been a winnable case, but it’s possible that the choice of lawyers might doom it. While Snyder’s lawyer was clearly competent, this is a difficult enough case that it’s possible someone else should have been lead counsel to argue this case at the Supreme Court.

Fortunately for Snyder, though, Fred Phelps and Westboro were represented by Phelps’ daughter, Margie Phelps, and she wasn’t impressive, either. Although she had a fair grasp of Supreme Court precedent involving free speech (which is a massive body of law), she made a number of mistakes. Setting aside minor issues such as sounding too folksy and using slang (talking about “mixing it up” and getting “up close in someone’s grille”—you don’t talk that way in the Supreme Court), four of these mistakes could prove fatal to her defense and hand a victory to Snyder.

The first was saying that Albert Snyder should be regarded as a public person instead of a private person, because he told a local paper that he opposed the war in which his son was killed. She claims that it doing so, he engaged in public debate, and invited a public response. When Justice Alito asked if a fallen soldier’s parent told the local paper, “I’m proud of my son because he died in the service of our country” would make that speaker a public figure who could be protested, Phelps said yes.

The second was refusing to answer the justices’ hypothetical questions, or answering them in the wrong way. While it’s possible to face a question that you don’t know how to answer, it’s sometimes the case that saying, “I can’t give you an answer” isn’t good enough. Usually hypotheticals present a situation where your argument would plainly be wrong. When presented with such a question, you need to be able to explain why your situation is different. If you can’t, you lose.

Phelps was unable to say why her case would be different than a person following a grandmother to her bus stop after a funeral, and taunting her as to how the speaker was glad her grandson died from a battlefield explosion, and the speaker wished they had captured that moment on tape. When you can’t explain how that situation is different from protesting Matthew Snyder’s funeral, you’re in trouble if you’re trying to defend the protests.

The third has to do with fighting words. “Fighting words” are unprotected by the Constitution, meaning words of such a nature that a reasonable person at whom those words are directed could reasonably be expected to react with physical violence to the speaker. Phelps was trying to get away from the possibility that Westboro’s protests amounted to fighting words by saying that fighting words require that the words be spoken essentially face-to-face to the victim, and that the speaker is intending to goad the recipient into a fight. Supreme Court precedent includes no such requirement.

Her fourth mistake was then summarizing her pushback against fighting-words doctrine by saying, “I am not a fan of the fighting words doctrine.” Well, who cares? If it’s the law, then it’s the law. And if you don’t like a doctrine, then by all means, never tell the Court, because that will only prompt the justices to take a closer look at that doctrine to see if it destroys your case.

But these were all arguments that the justices raised themselves. They were not found in Snyder’s brief nor argued by his lawyer, so it’s unclear how the Court will come down.

The frustration that arises from people like the Phelpses is that it makes it much harder for well-meaning and gracious people of faith—and especially Christians—to express their personal religious objections to things such as same-sex marriage without being lumped in with the offensive words and tactics of the Westboro crowd. Those who believe that nobody is perfect, and seek to share a message of salvation and forgiveness in Jesus Christ to all people, can easily be mischaracterized as sharing the same faith as the Phelpses if the person they’re reaching out to happens to be homosexual.

In other words, cases like this endanger religious liberty. One of the maxims you learn in law school is “hard cases make bad law.” It’s hard to shut down what Fred Phelps is doing without also seriously curtailing religious speech for adherents of mainstream religious faiths. That problem lead one major conservative legal organization to file a brief supporting Phelps—making it clear as they did so that they passionately oppose what Westboro says. Snyder’s argument, if adopted, would curtail free speech on a number of issues that are currently protected.

While it’s hard to find a way through this thicket, the justices seemed to suggest that there might be one way this case could go the way of the grieving family. If the Court holds that (1) Snyder is a private person, (2) that this was a private event, (3) that it did not involve a public issue, (4) that the offensive speech here constitutes fighting words, and (5) that Snyder’s actions in seeking out this hateful speech doesn’t mitigate what the Westboro people said, then this speech would be unprotected. As such, if this speech amounts to IIED or some other tort under Maryland law, then Snyder could recover against the Phelpses.

But that could be a tall order, and it’s unclear whether the Court will adopt such an approach. A decision is expected sometime early next year.


Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.


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