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Dylan Slagle  /  Carroll County Times
Isaiah Phelps-Roper, 17, and Rebekah Phelps-Davis, both of Topeka, Kan., protest the funeral of Marine Lance Cpl. Matthew A. Snyder at St. John Roman Catholic Church in Westminster, Md.
updated 10/6/2010 7:12:25 PM ET 2010-10-06T23:12:25

The top U.S. court, in a sensitive test of free-speech protections, considered on whether a fundamentalist church had the right to picket at a Marine's funeral with signs like "Thank God for Dead Soldiers."

The father of a Marine killed in Iraq is asking the Supreme Court to reinstate a $5 million civil verdict against members of the Westboro Baptist Church of Topeka, Kansas. An appeals court threw out the fine on the ground that the First Amendment to the U.S. Constitution guarantees the right of free speech.

The Supreme Court justices heard arguments Wednesday in the emotion-laden case of Albert Snyder. His son died in Iraq in 2006, and members of the Westboro Baptist Church protested the funeral to make their point that U.S. deaths in Afghanistan and Iraq are punishment for Americans' immorality, including tolerance of homosexuality and abortion.

Justice Ruth Bader Ginsburg said the question is whether the First Amendment must tolerate "exploiting this bereaved family."

There was no clear answer from the court during the questioning.

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Snyder is asking the court to reinstate the lower-court verdict's fine against the Westboro members who held signs outside the funeral of Lance Cpl. Matthew Snyder, including ones that read "Thank God for Dead Soldiers, "You're Going to Hell" and "God Hates the USA." The Marine was killed in a Humvee accident in 2006.

The church also posted a poem on its website that attacked Snyder and his ex-wife for the way they brought up Matthew.

Westboro members, led by the Rev. Fred Phelps, have picketed many military funerals to make their point that U.S. deaths in Afghanistan and Iraq are punishment for Americans' immorality, including tolerance of homosexuality and abortion.

The case pits the right of the father, Albert Snyder, to grieve privately against the church members' right to say what they want, no matter how offensive.

The members of the small church welcome the attention the protests have brought, mocking their critics and vowing not to change their ways whatever the outcome at the Supreme Court.

"No American should ever be required to apologize for following his or her conscience," said Margie Phelps, a daughter of Fred Phelps and the lawyer arguing the case for the church.

Fundamentalist church members turned out in advance of the argument Wednesday morning to march in front of the Supreme Court building with placards of the type they have been carrying to military funerals. One young boy held up a sign that reads, "God Hates You."

A line of people trying to get in to hear the court argument stretched around the corner of the high court, across the street from the U.S. Capitol.

Image: Margie Phelps argues for the Westboro Baptist Church before the U.S. Supreme Court on Wednesday
Art Lien  /  NBC News
Margie Phelps argues for the Westboro Baptist Church before the U.S. Supreme Court on Wednesday, Oct. 6, 2010, in Washington, D.C.

Snyder undertook the lawsuit after the Phelpses picketed the funeral of his son, Lance Cpl. Matthew Snyder, in March 2006. The Marine was killed in a Humvee accident.

Snyder won an $11 million verdict against the church for intentional infliction of emotional distress, among other claims. A judge reduced the award to $5 million before the federal appeals court in Richmond, Virginia, threw out the verdict altogether, citing the church's free speech rights under the First Amendment.

For Snyder, the case is not about free speech but harassment. "I had one chance to bury my son and it was taken from me," Snyder said.

Forty-eight states, 42 U.S. senators and veterans groups have sided with Snyder, asking the court to shield funerals from the Phelpses "psychological terrorism."

While distancing themselves from the church's message, media organizations, including The Associated Press, have called on the court to side with the Phelpses because of concerns that a victory for Snyder could erode free speech rights.

The Associated Press contributed to this report.

Video: SCOTUS weighs limits of free speech protection

  1. Closed captioning of: SCOTUS weighs limits of free speech protection

    >>> good evening. the u.s. supreme court sometimes deals in esoteric legal questions but not today. here's the case, a young marine is killed in iraq. at his funeral back home, protestors show up, saying "thank god for dead soldiers ." and worse. can you imagine being that marine's parents and imagine how that would make you feel? today, the court got this case. they're not being asked to decide if it was a terrible thing to do, it was. they have to decide if it was free speech on the part of the protestors. it's where we begin tonight with pete williams . pete, good evening.

    >> reporter: this case has aroused strong passions, partly because of the setting, a military funeral , and partly because of the hateful message and several of the justices seem to be offended by it, too. when a dream of serving in the u.s. marines ended in iraq's al anbar province , his family gathered for his funeral at this maryland church. but they had protestors with signs that said "thank god for dead soldiers ." fred phelps shows up at military funerals to claim that because the nation tolerates gay rights , u.s. war deaths are god's punishment.

    >> i pray that they kill more of them guys. these idiots are still talking about patriotism.

    >> reporter: their message at the funeral outraged albert, who sued for emotional distress over the protest and a diatribe phelps put on line saying schneider raised his son for the devil.

    >> speaking of a father, their conduct was so extreme, it went beyond all possible bounds of decency.

    >> reporter: but phelps ' daughter said that funerals are public events open to protests.

    >> the mere fact that you call yourself having your feelings hurt over words is not enough to shut up speech.

    >> reporter: but if she was expecting a ringing endorsement from the court, she didn't get it. justice ginsburg called it exploiting a private family's grief. why should the first amendment tolerate that when there are so many other places to spread an anti-war message, like public buildings or parks? the phelps insist they keep their distance at funerals, but justice scalia says that doesn't mean you can have a protest that defames the corpse. he asked, suppose someone walks up to a woman that has just been to the grave of her son killed in war --

    >> you have one and only one opportunity to bury your child. and aiz civilized society, we shouldn't be forced to skip the funeral.

    >> reporter: but free speech advocates say without the idea to express ideas even offensive, it would suffer.

    >> the public discourse could become bland and there would be no meaningful exchange of ideas.

    >> reporter: the court has recognized limits on free speech like fighting words or shouting fire in a crowded theater . and the court seemed to at least willing consider it again this time. brian?

    >> pete williams starting us off at the court tonight in

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