WASHINGTON – The Supreme Court struggled Wednesday with the question of whether the Constitution’s guarantee of free speech can be restricted when a protest is aimed at a private family at its moment of most intense grief.

The court was considering the case of the Westboro Baptist Church of Kansas, whose anti-gay protests have targeted the funerals of fallen soldiers from the wars in Iraq and Afghanistan. Composed almost entirely of the family members of its founder, the Rev. Fred W. Phelps, the church contends the deaths are God’s revenge for the country’s tolerance of homosexuality.

“We’re talking about a funeral,” said Sean E. Summers, an attorney for Albert Snyder, whose 20-year-old son Matthew’s funeral was picketed by the group in 2006. “If context is ever going to matter” in deciding when First Amendment rights may be curtailed, Snyder said, this had to be it.

But Margie J. Phelps, a daughter of the church founder who argued the case for her family, said her “little church” is protected in preaching its profound belief: “If you want them to stop dying, stop sinning.”

Albert Snyder sued Phelps and argued at trial that the demonstration at his son’s funeral invaded his privacy, caused emotional distress and violated his rights to free exercise of religion and peaceful assembly. He said a treatise posted on the church’s website specifically mentioned Matthew and his family.

Phelps and his followers had also threatened to protest at at least three military funerals in Maine. They failed to show up at two of them, but two church members did protest down the street from the Portland funeral of Lance Cpl. Angel Rosa, who was killed in action in Iraq in 2007.

In 2007, the Maine Legislature passed, and Gov. John Baldacci signed into law, a bill making it a crime to accost, insult, taunt or challenge any person attending a funeral, burial or memorial service. At least 30 states have passed similar laws, some of which have been challenged on free-speech grounds.

Maine Attorney General Janet Mills said that lower courts have recognized the right of states to regulate the place, time and manner of protests.

However, she said protests orchestrated by Phelps would not have violated that law because the demonstration was held in a public area at a distance from the church, the protesters were under police supervision and they did not confront those attending the funeral or disrupt the service.

Snyder is supported by the attorneys general of 48 states and the District of Columbia. He also has drawn backing from the majority and minority leaders of the Senate, along with a bipartisan mix of 40 senators.

Maine, along with Virginia, declined to participate in the case.

Mills said in a statement in June that the actions of Phelps and his followers were “offensive and outrageous, but the First Amendment does not allow us to distinguish between polite speech and hateful or outrageous speech.”

The church has been supported by First Amendment advocates and media groups, who have denounced the Phelpses’ message but defended their right to free speech.

A jury awarded Snyder more than $10 million, which was cut in half by the judge and then overturned by the U.S. Court of Appeals for the 4th Circuit in Richmond. A three-judge panel said that although Phelps’ rhetoric was offensive, it was protected as speech concerning issues in the national debate.

In court Wednesday, Justice Ruth Bader Ginsburg pressed Summers. The protesters obeyed all laws and complied with instructions from police about where they could stand, she said. Has a group ever been forced to pay damages for lawful conduct? she asked.

Nearly all of the justices referred to the group’s noxious practices; a sampling of the signs carried at Snyder’s funeral at St. John’s Catholic Church in Westminster, Md., included “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers” and “Priests Rape Boys.”

Even Ginsburg noted that the case was about “exploiting a private family’s grief.”


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