A federal appeals court dismissed the suit on First Amendment grounds and threw out a $5 million award against the protesters, who are members of Westboro Baptist Church in Topeka, Kan., and maintain that God hates homosexuality and that the death of soldiers in Iraq and Afghanistan is God’s way of punishing the United States for its tolerance of it.
The fallen Marine was Lance Cpl. Matthew A. Snyder, and his funeral was held in Westminster, Md., in 2006. His father, Albert Snyder, testified at trial in 2007 that the protests continued to haunt and disturb him.
“For the rest of my life,” Mr. Snyder said, “I will remember what they did to me, and it has tarnished the memory of my son’s last hour on earth.”
He added that he became angry and tearful when he thought about the protest and that the memory of it had caused him to vomit.
The protesters complied with local laws and instructions from the police about keeping their distance. They did not know the Snyders, and they had staged similar protests at other military funerals.
Mr. Snyder’s central claim is that the protesters intentionally inflicted emotional distress on him.
In 1988, the Supreme Court ruled that the First Amendment barred the Rev. Jerry Falwell from suing Hustler Magazine for intentional infliction of emotional distress. Hustler had published a parody of an advertisement suggesting that Mr. Falwell had incestuous sex in an outhouse. (Coincidentally, Mr. Falwell expressed views not wholly different from those of the funeral protesters, saying that the nation’s attitudes toward homosexuality and abortion had played a role in the Sept. 11 attacks.)
Mr. Snyder contends that the Hustler decision should not apply to suits brought by one private person against another. In libel and other cases, the Supreme Court has limited the First Amendment protection afforded to purely private speech.
A three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously ruled against Mr. Snyder, though the judges split 2-to-1 over the rationale. The majority said the messages on the protesters’ signs were protected under the First Amendment because they addressed matters of general interest.
“As utterly distasteful as these signs are,” Judge Robert B. King wrote for the majority, “they involve matters of public concern, including the issues of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.”
The Supreme Court will consider the case, Snyder v. Phelps, No. 09-751, in the fall.