A legally dubious claim of intrusion upon the privacy of funeral mourners trumped the First Amendment rights of an anti-gay preacher and his followers as a Maryland jury awarded $10.9 million to the father of a slain Marine.

The odiousness of Fred Phelps's views make him an unpalatable champion, at best, of free-speech rights. The founder of the Westboro Baptist Church of Topeka, Kan., has been picketing military funerals around the country, claiming casualties in Iraq are God's way of punishing America for its tolerance of homosexuality.

A Baltimore jury this week ruled that Phelps and his two daughters crossed the line into unprotected speech at the funeral of Lance Cpl. Matthew Snyder in March 2006 and awarded $2.9 million in compensatory damages and $8 million in punitive damages to Snyder's father.

Albert Snyder had sued the defendants for invasion of privacy by intrusion upon seclusion and intentional infliction of emotional distress. The compensatory award alone, if upheld, would likely force Westboro Baptist into bankruptcy.

“No one has disputed the fact that this so-called church can say whatever they want to say at their church,” Snyder said after the verdict. “The problem is when they interject themselves and their antics at someone else’s church at a particularly private time when you have a captive audience at a funeral.”

An unabashed Phelps predicted the verdict will be “reversed in five minutes.” That, of course, is hyperbole, but he does have at least one strong appellate argument -– that the Snyder funeral was not a “private event” and, even if it was, the protest did not physically intrude on the mourners.

Phelps's daughter and co-defendant Shirley Phelps-Roper told jurors Albert Snyder never saw the protesters because they were 1,000 feet away and down a hill from the church where the funeral was held. "We stood exactly where police asked us to stand," she said. "We were out of sight and sound."

In denying a motion to dismiss, U.S. District Judge Richard D. Bennett ruled in June that “In the private setting of a funeral, physical invasion would not be necessary to intrude upon the privacy of the family of the deceased” and noted that the U.S. Supreme Court has recognized the need to protect the solemnity of funerals from "unwarranted public exploitation."

But that Supreme Court precedent –- National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) –- involved a public records request for access to death-scene photos of Clinton White House attorney Vincent Foster, not a protest at a funeral.

Several states have reacted to Phelps's activities by enacting anti-picketing laws similar to those passed against protestors at abortion clinics. In Phelps's challenge to one of those laws, a Kentucky judge said a funeral “is a deeply personal, emotional and solemn occasion” and the “state has an interest in protecting funeral attendees from unwanted communications that are so obtrusive that they are impractical to avoid.”

Nevertheless, U.S. District Judge Karen K. Caldwell struck down a provision of the Kentucky law establishing a buffer zone of 300 feet around the site of a funeral, finding that it

restrict[s] substantially more speech than that which would interfere with a funeral or that which would be so obtrusive that funeral participants could not avoid it. McQueary v. Stumbo, 453 F. Supp. 2d 975 (2006).

If Phelps and his followers were more than three times the Kentucky buffer zone away from the service for Lance Cpl. Snyder, how could their protest have intruded on the mourners' seclusion, let alone be “sufficiently outrageous” to warrant a punitive damages award?

By Matthew Heller
11/3/07