Westboro Church Prevails in Free Speech Lawsuit, Leaves Unfinished Business for Dead Marine’s Father.

There has been yet another international media explosion over the controversial Westboro Church and its outlandish beliefs and actions. It all began with protests of Albert Snyder’s Son’ Funeral, the funeral of deceased Lance Cpl. Matthew Snyder.

MSNBC, “Dad Sues ‘Thank God for Dead Soldiers’ Church”

Baltimore Sun, “A Marine’s Father Fights on for His Son”

New York Daily News, “Father of Marine who Died in Iraq Speaks out, Gets Support in Legal Fight against Westboro Church” ?

Sydney Morning Herald, “Supreme Court Face-Off Looms For Dad And ‘Dead Soldier’ Church?”

For those who are yet unaware of the controversy, this Church, known as the “Thank God for Dead Soldiers Church”, was infamously known for protesting military funerals, using inflammatory language to defile honors given to America’s heroes. This Church’s followers are adamantly anti-homosexual. They believe that America is being punished in the loss of its sons and daughters due to our Nation’s stance of tolerating or condoning homosexual behavior. Their inflammatory quotes make comparisons of America to the Biblical City of Sodom.

In response to the uproar created by these havoc-wreakers, many states passed laws to ban protests of funerals within a given distance. These statutes, in various actions throughout the country, are being challenged by this and other like groups on First Amendment Constitutional grounds. The issue here is also a First Amendment issue. It is whether a private individual who is wronged by speech of another, may recover damages against a group exercising its right to public “speech”. The key question was whether the church’s “speech” and conduct constituted protected speech, and if so, what level of scrutiny should be afforded to such “speech”.

In the Federal District Court in Maryland, Albert Snyder, the father of a deceased United States Marine, brought an action against the fundamentalist church and its members, stemming from defendants’ anti-homosexual demonstration near soldier’s funeral, alleging claims for intentional infliction of emotional distress (IIED), invasion of privacy by intrusion upon seclusion, and conspiracy. Following judgment for father, the United States District Court for the District of Maryland, Richard D. Bennett, J.,533 F.Supp.2d 567, remitted the aggregate punitive damages award, but otherwise denied post-trial motions. Defendants appealed.

In the appeal, Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), decided September 24, 2009, the U.S. Court of Appeals held that, among other things, the fundamentalist group’s speech was protected and that the District court improperly awarded punitive damages to the father, Albert Snyder. In addition, in an unprecedented move between private entities, the Court awarded Phelps $16,510 in court costs. The Church plans to use this award to fund future protests. The United States Supreme Court has granted certiorari to review the case.

Westboro Baptist Church’s conduct–as well as the Court’s protection of it–deeply offend me, both as a Christian and a United States Marine. I do not believe Jesus would condone such outrageous behavior, and I don’t believe that such a cult should have the privilege of being affiliated with the greater Church. As a further matter, I don’t believe the forefathers intended to protect or condone this behavior. The families of valiant military men and women who lay down their lives get one (1) single opportunity to honor their loved ones for their great service and sacrifice. Heroes defend our rights by sweat and blood, so that whackos like these fundamentalists can invoke the Constitution to spit on these great heroes’ coffins. Total irony in my opinion.

Deeply disappointed,

Christopher A. Buckley, USMC
Host, NWI Lawyer

A week ago, as the Healthcare Reform Bill passed Congress, controversy exploded as 13 states and Virginia individually, filed suit against the U.S. Government to strike down the recently passed bill and enjoin its enforcement. This past Tuesday, Indiana Attorney General Greg Zoeller announced that he would join in the Florida suit, remarking in Tuesday’s press release:

“There has been a great deal of public debate regarding this new federal program. While I personally share the grave concerns that have been expressed regarding this law, I believe it is in the best interests of all — even those who have supported the new law — to raise the constitutional questions to the United States Supreme Court,” Zoeller said. “When the federal government imposes unprecedented legal obligations of this magnitude on state government, it is my obligation as Attorney General to join and participate in challenging the constitutionality of the bill.”

* * *

“There are advantages to joining in with other states in raising the constitutional issues arising from the new claim of federal authority over individuals and states. Our goal by joining is ultimately to bring the constitutional questions to the United States Supreme Court for review,” Zoeller said.

Before we even address the merits of the respective claims, we have to address a question of justiciability. These doctrines are known primarily as “ripeness”, “mootness”, and the famous “political question” doctrine. For our purposes here, “ripeness” is at issue. “Ripeness” basically states that in order to have standing before the United States Courts, there must be an actual and present case or controversy. (“Ripeness” and “mootness” are simply complementary; ripeness is when a controversy has not yet arisen, and “mootness” is when the controversy is no longer active, i.e. it has been resolved by a prior decision or act of Congress.)

Here we have a problem with the respective claims, primarily because the law has not yet gone into effect. In fact, it will not go into effect until 2014. Before the High Court gets to the merits of the issues, it is my prediction (and the prediction of many legal scholars) that the the arguments will end here. If, for some unknown reason, the Court looks past this fatal flaw, it can then and only then address the substance of the attorneys’ general claims.

The merits of these suits focus on the “individual mandate” requiring individual citizens to purchase health insurance or face a $750 tax penalty per year exceeds the power granted in Article I of the United States Constitution. The precise clause in question is in the specifically enumerated powers granted to the Federal legislature. “Congress shall have the power to lay and collect taxes . . . [to] provide for the common defense and general welfare of the United States . . . [and] to regulate commerce.”

The latter of these, the “Interstate Commerce Clause” has been interpreted extremely broadly over American jurisprudential history to include activities of a questionably economic, or even a non-economic nature. For example, in the 2005 opinion in, Gonzales vs. Raich, even justice Antonin Scalia joined in stating the near limitless grant of power inherent in the Interstate Commerce Clause. In that case, the Court found Congressional authority to regulate individual marijuana growers (for personal medical use) in the State of California, where state law permitted it. The Court reasoned, even “…noneconomic local activity…” can come under federal regulation if it is “…a necessary part of a more general regulation of interstate commerce,” Scalia wrote.

The respective attorneys general have focused primarily on the above argument, because, in short, individual rights have been given a stronger reading by the various supreme court justices over the past few decades. What is missing, from media attention, however, from a jurisprudential point of view, is the more principled Tenth Amendment argument, but this also fails.

Under the Tenth Amendment, the Federal Government cannot “commandeer” state resources to accomplish federal mandates. These lawsuits claim that the new bill creates just such an “unfunded mandate” by requiring states to implement an expansion in state-run Medicaid programs. The Court has determined over a long history of well established precedent that the pinnacle of Congress’ power rests in the Spending Clause. Likewise, the problem here is that medicaid programs are voluntary, in that the programs are based on matching funds. States are free to opt out of the Medicaid program, where states receive federal funds in exchange for running such programs. In order for the Court to find a Constitutional violation under the Tenth Amendment, the federal government action in question must “commandeer” state resources or “mandate” states to perform (or not perform) some particular function.

In summary, it appears that claims against the recently passed Heathcare Reform Act are without sufficient legal merit. While I find the recent Healthcare Bill clearly unwise and imprudent, I adhere steadfast to my belief that this is not the proper role of the courts. As tempting as it is for me to want to attack the law in this way, it grossly contradicts my much stronger convictions of judicial restraint. Looking at this issue pragmatically, it appears that my colleagues are choosing a strictly partisan and very shortsighted view. I find it ironic that my fellow Conservatives aren’t worried about needlessly spending taxpayer dollars for a questionable, partisan gain. Sometimes as an attorney, you have to deliver bad news to your clients, based on an objective assessment of their claims. A bad result does not necessarily make a good lawsuit. It appears that Attorney General Greg Zoeller (and the others) should take heed to this advice.

What’s your opinion, NWI?