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Free speech vs. family's grief

WASHINGTON -- Supreme Court justices expressed concern Wednesday for a father whose Marine Corps son was killed in Iraq and whose funeral was protested by fundamentalist pastor Fred Phelps and his anti-gay followers.

"This is a case about exploiting a private family's grief," Justice Ruth Bader Ginsburg said.

Yet, the array of justices' questions during the hourlong session revealed the difficulty of the case and the reality that the court's free speech precedents make it hard for individuals to claim they have been harmed by even horrific statements regarding public issues.

Even with their sympathy for the bereaved father, the justices, including key vote Anthony Kennedy, were clearly struggling with how to avoid a ruling that encroaches on legitimate, although hateful, protest messages.

Justice Elena Kagan noted that the demonstrators were "glomming onto a private funeral," yet they apparently were following all local ordinances about keeping their distance from the church.

Ginsburg's questions also suggested that local laws about where protesters may gather might sufficiently protect the sanctity of funerals.

The case arose after Matthew Snyder, a Marine, was killed in Iraq in 2006. Fred Phelps and members of the Westboro Baptist Church, who comb media reports nationwide for news of military funerals, saw where Matthew would be memorialized and buried. They protested near the Catholic church in Westminster, Md., with signs that said: "Thank God for Dead Soldiers," "Fag Troops" and "Pope in Hell."

Westboro, founded by Phelps in 1955 and made up mainly of his relatives, preaches that God hates gay people and protests what it says is a national tolerance for homosexuality, particularly in the military's "Don't Ask, Don't Tell" policy.

Matthew Snyder was not gay, yet his funeral offered Westboro congregants a forum for their message.

Church followers separately posted on the Web a video "epic" about their protests titled "The Burden of Marine Lance Cpl. Matthew Snyder." The video said Albert Snyder and his ex-wife had "taught Matthew to defy his creator" and "raised him for the devil."

Snyder sued for damages based on the emotional distress that Phelps and his followers caused him and won $5 million in a jury verdict. But the U.S. Court of Appeals for the 4th Circuit reversed the verdict.

The American Civil Liberties Union says Phelps' horrific message is exactly the kind of unpopular, offensive speech the First Amendment was intended to protect.