Margie J. Phelps represents Westboro Baptist Church, and yes, before you ask, she hates you, she really hates you. She most likely hates the six Catholics and three Jews up there on the bench, too. But she hides it well. Speaking in the flat, affectless voice of someone who has been either extremely well-coached or exceptionally well-medicated in anticipation of today's festivities, she explains to the justices, "When members of the Westboro Baptist Church entered an ongoing, extensive, public discussion ... in direct connection with the deaths and funerals of soldiers killed in Iraq and Afghanistan, they did so with great circumspection and an awareness of the boundaries that have been set by the court."
Scalia wonders whether these signs and Web posts could be unprotected words under the fighting words exception to the First Amendment, but Phelps says this protest was never intended to provoke a fight. Channeling Stephen Colbert, she says their message is just this: "Nation. Hear this little church. If you want them to stop dying, stop sinning."
Here's where the justices get to express just how much they hate the Phelps tactics. They call this "posing hypotheticals." Counsel spends the remainder of the day refusing to answer the hypotheticals. It's rapidly become a hate stalemate.
Kagan wonders if a group could follow a wounded soldier around and "demonstrate at his home, demonstrate at his workplace, demonstrate at his church," does he have a claim for intentional infliction of emotional distress?
Alito ups the ante: He envisions a "grandmother who has raised a son who was killed in Afghanistan or in Iraq" who goes to visit the gravesite and is approached by a war protester who says he is so happy her grandson was killed by an IED. "Now, is that protected by the First Amendment?" he asks. Phelps replies that maybe it would incite a violent reaction by the listener, so Alito qualifies, "She is an elderly person, she's not in a position to punch someone in the nose." And Scalia with the assist: "And she's a Quaker, too!"
Margie Phelps tries to suggest that the old Quaker grandma never made her dead grandson a public figure, whereas once Snyder took to the airwaves to ask "when will this senseless war end," he made himself a public figure. And so it came to pass that "a little church where the servants of God are found" heard his question and has an answer: "Our answer is, you have got to stop sinning," she says, making clear that Albert Snyder is responsible for the hate heaped upon his head by their church.
Alito can't quite believe what he's hearing: "Does every bereaved family member who provides information to a local newspaper for an obituary thereby make the deceased person a public figure?" He asks whether harassing African-Americans on the street with racial insults is also a matter of "public concern." Phelps responds: "I think approaching an individual up close and in their grill to berate them gets you out of the zone of protection." She uses the term "up in their grill" several times today. As a legal matter or even a practical one, it makes absolutely no sense as far as I can tell, but it is rather charming when delivered in a dead flat monotone.
Justice Anthony Kennedy jumps in to murmur worriedly about the fact "that all of us in a pluralistic society have components to our identity" and adds that if the Phelps position is that "you can follow any citizen around at any point ... you should help us in finding some line there." Adds Breyer, "We are still so worried about the statements on television and on the Internet and the knowledge there."
The headline writers are going to say that the justices "struggled" with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that's why we needed a First Amendment in the first place.
Disclosure: I am on the steering committee of the Reporters Committee for Freedom of the Press and the Thomas Jefferson Center for Free Expression, both of which filed amicus briefs on behalf of the Westboro Baptist Church in this case.