COLD OPEN

PHELPS: When God brings a sword on a nation for its sin, if you do not open
your mouth and say, "Stop sinning," the next round of blood is on your hands.

And the only time the First Amendment really matters in this country is when your
speech is the dissenting, troubling, angering, unpopular voice. Who needs the
First Amendment for "G-d bless America"?

MIKE: Do we have the constitutional right to be mean? How mean? In our previous
episode, we told the story of Hustler magazine and its inflammatory parody of the
televangelist Jerry Falwell.
MATT: But what if inflammatory words are directed to a private citizen, to a grieving
father at his son’s funeral? That’s today’s episode. I’m Matthew Schwartz.
MIKE: I’m Mike Vuolo.
MATT: And this is Unprecedented.

TITLE BREAK

SNYDER: Matt was a senior in high school when he came home and said that he
saw a recruiter at school, and that he was interested in joining the military.

MIKE: This is Albert Snyder, talking about his son Matt.

SNYDER: You know I said, "Matt, that's fine if that's what you wanna do, but I
want you to take a couple weeks to really think about this." I said, "We're in the
middle of a war with Iraq. It's not getting any better." And he said, "OK, Dad," and
he came back to me about two weeks later and said, "I've decided I want to join.”

I remember Matt with his big ears. Um, the first time I saw him with his Marine
Corps hat on, in dress blue. I saw the hat, but all you could see really was the
ears sticking out from under it.

MIKE: In December of 2005, Matt came home to Maryland for the holidays. He broke
the news to his family. He was being deployed to Iraq.

SNYDER: Of course he tried to convince both his mom and I that, "I'm not gonna
be on the front lines.” I think he probably knew and I think for myself, when he
was home that Christmas, I did sense a little bit of worry with him.
SCHWARTZ: So, did he get sent to the front lines?
SNYDER: Umm, yeah pretty much. Pretty much. It's different when there's a war
going on and you have a child over there. Every time you hear on the news a
soldier was killed, you're wondering in the back of your mind, "Was it mine? Was
it mine? Was it mine?”

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MIKE: Matt took a video in the barracks one day in February. Of his Marine Corps
buddies just hanging out, joking around. It’s the last recorded sound that Albert has of
his son’s voice.

MATTHEW SNYDER: McBreezy’s on tee-veezy! Little Jesus sleeping. (Snyder!)

Cue change looking gangster as ever. Little McDonald, little girl Susie. Cut. And
that’s a wrap.

MATT: On March 3rd, 2006, Matt volunteered for a convoy mission in Iraq’s Anbar
province. That evening—6,000 miles away, back in the U.S.—Al was in the shower
when the doorbell rang.

SNYDER: And my initial thought was it's my youngest daughter. She forgot her
key. So, I got out of the shower, threw a robe on, and I went to the front door,
and when I opened the door, there were two Marines there. And as soon as I
saw them, I knew why they were there. Kinda hits you like, kinda hits you like a
brick wall. It was a hard day. A hard night. Hard week. Hard years.

You know, there’s not a day that goes by that I don’t think of Matt. You know, I
wonder would he be married? Would he have children? Would he have stayed in
the Marine Corps? What would his life be now? What would be his contribution to
society right now?

MIKE: 20-year-old Marine Lance Corporal Matthew A. Snyder was buried in his
hometown of Westminster, Maryland on the morning of Friday, March 10th.

SNYDER: I remember that the immediate family went to the funeral home and
said our last goodbyes to Matt. I remember I was the last one out of the funeral
home, and we got into a limousine and we headed towards St. John's Church.
We had to travel down Route 140 in Maryland, which is a major highway, and I
remember they had, they had it shut down, basically, and people were out of
their cars, standing there with their hands on their hearts, and as we rode past
the fire department, the fire department had their trucks out facing each other
with a big flag draped. It was, it was pretty impressive. It really was.
SCHWARTZ: And it was all for Matt.
SNYDER: Yes. It was. I also remember the children in the grade school at the
church were standing along the side of the road with signs that said, "We love
you, Matt.”

MIKE: As Albert Snyder was heading to St. John’s that day, what he didn’t know—what
the hundreds of other mourners on their way to the funeral didn’t know—was that
another group was also traveling to the church. This is Margie Phelps.

PHELPS: Three adults and four children took a flight late the evening before.
They carry placards in artwork bags and, um, drove to this relatively small town.

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MATT: St. Johns is on a large plot of land with several buildings—including a school
and the chapel. On the day of the funeral, the limo driver didn’t pull in through the main
entrance. Which was weird.

SNYDER: There was a little hill that went over down the road like, and then we
winded up turning into a service entry of the church, versus going into the main
entrance of the church.
SCHWARTZ: And did you know, at that point, you were taking a different
entrance into the church?
SNYDER: Yes. Yes. It was quite obvious, because that was the church we had
belonged to.
SCHWARTZ: Did you know why?
SNYDER: At that point, no.

PHELPS: Our folks went to where law enforcement told them to stand, got in that
area—really just about enough for those seven people to stand in, at the tip of
that property—took out signs, and for 30 to 45 minutes stood there, holding
signs, singing.

SNYDER: As we turned the corner of the church, from where I was sitting behind
the driver of the limo, I could see a lotta commotion, a lotta emergency vehicles
there, and I could see the tops of the signs. I didn't see what the signs said. We
did hear the chanting. We heard it when we were getting ready to go into the
church, and at that point, when they started chanting, the group of bikers that
came to the funeral would rev their motors on their motorcycle.
MATT: In order to drown them out.
SNYDER: To drown them out. Yeah.

MATT: Matthew Snyder’s family had become the latest target of the Westboro Baptist
Church, which believes that dead soldiers are the price we pay for abandoning the
teachings of the Bible and embracing sin. Westboro gained notoriety for picketing at
hundreds of military funerals over the years.
MIKE: Of course, when Westboro shows up to a funeral, so too do the news media and
the cops and a group called the Patriot Guard Riders, who arrive on motorcycles and
use large American flags to help shield the family from having to see the Westboro
picketers.

SNYDER: They turned the funeral into a circus. That's what they did. Because of
their presence, there were probably 150 reporters on the ground. There were
state police. There were county police. There were sheriff's department. There
was a SWAT team set up in a Winnebago. All we were trying to do was bury a
20-year-old kid.

MIKE: Margie Phelps is the daughter of Westboro founder Fred Phelps and she’s a
member of the church. She says that it’s common for the parents of a fallen soldier to

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wonder: What’s the point of the war and why are our children dying? Westboro shows
up at these funerals to answer those questions.

PHELPS: And our answer is that because of policies of proud, impenitent sin, G-
d has dragged this nation into a war that it cannot win, and you're sending the
fruit of your nation onto the battlefield to be mangled, and killed because you love
your sin more than their lives. And adding insult to injury, when you encounter
that mayhem, that awful, sorrowful, outcome, instead of seeking G-d's mercy and
forgiveness, you lift up your flag, which is the equivalent of lifting up your middle
finger to G-d.

That is not a blessing that your young son is lying in there dead. How do you get
G-d bless America out of that scene? When G-d brings a sword on a nation for
its sin, if you do not open your mouth and say, "Stop sinning," the next round of
blood is on your hands. What is an IED but a broken up sword? That’s our
answer.

MATT: Westboro protested for about 30 minutes, just until the funeral was about to
begin.

PHELPS: When it's start time for the funeral, they loaded up the signs back into
the bag and got in the vehicle and left, and it was without incident, it’s not always
without incident.

MIKE: After the funeral, Matt’s grandparents held a small wake in their home. Here’s
Albert Snyder.

SNYDER: We were all down in their family room, and somebody said let's turn
on the television and see what they say about Matt, because there were so many
reporters there.
NEWSPERSON: A shocking protest at the most unlikely of places, the funeral of
20-year-old Lance Corporal Matthew Snyder—tainted by the Westboro Baptist
Church, a family from Topeka, Kansas …
SNYDER: And, that's when I saw the signs …
SCHWARTZ: Like a close-up of the signs?
SNYDER: Yes. Yeah.
SCHWARTZ: Do you remember what they said?
SNYDER: Yeah. Um, "You're going to hell." "Semper Fi fags." "Thank G-d for
dead soldiers." And I started yelling turn it off, turn it off. And I just kind of stood
there with amazement.

VUOLO: So, Margie it's your belief and the belief of your church that the wars in
Iraq and Afghanistan were a result of, I think, tolerance of homosexuality and
other sins. Are you sure about that? I mean, most people would probably
attribute those wars to George W. Bush or people in his administration. How do
we know that it’s directly related to G-d’s dissatisfaction?

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 PHELPS: Am I sure about that? Are we sure about that? We're as sure as we
can be. We don't do any of this without a lot of introspection, and a lot of seeking
the Lord, and a lot of searching the scriptures. Nobody ever takes seriously the
proposition that you should be sober and righteous, and study the scriptures, and
pass the time of your sojourning on this Earth with a proper fear of G-d. That is
not on the landscape as a solution, but it's the only solution. And it's what we
humbly offer you. And it's hope, and it's life, and it's peace. So we're as sure as
we can be.

MIKE: The Westboro Baptist Church may have been offering hope and peace, but it
wasn’t received that way. Not by Albert Snyder. For him, the message on those picket
signs was personal apart from his son’s death.

VUOLO: So, there was something going on that nobody really knew about at the
time.
SNYDER: Right.
VUOLO: Here you are at your son's funeral, and the Westboro Baptist Church,
as they do, is holding up signs that say things like “God Hates Fags,” and they
don't know it, nobody really knows that you're gay.
SNYDER: Right. My friends and family knew it, and I think they could understand
the intensity—it was bad enough that this was going on, but they hated to see me
and my partner and my friends have to deal with something so vicious at a
funeral. I had one opportunity to bury my son, and it was taken away from me.
He should have had a peaceful burial.

MIKE: In the weeks and months following Matt’s funeral, Albert discovered that he
wasn’t able to reflect on that day without thinking of the protest. He believed that
Westboro had stolen from him the ability—the right—to properly mourn his son. He
became anguished and tormented. Here’s what he told NPR’s Nina Totenberg.

SNYDER: This was at a funeral. I shouldn’t have to look away from anything at
my own child’s funeral. These people targeted me and my family. I want to know
how you would feel if somebody stood 30 feet away from the main vehicle
entrance of a church when you’re trying to bury your mother with a sign that says
“Thank God for dead sluts.” You tell me that shouldn’t be illegal. You tell me that
somebody has the right to do that!”

MIKE: Albert Snyder sued the Westboro Baptist Church for intentional infliction of
emotional distress.
MATT: Which is just another way of saying that someone was so mean, their conduct
so outrageous ...
MIKE: “Outrageous” being an actual legal term meaning beyond all bounds of decency
in society.
MATT: Yeah, if somebody is found to have crossed that line then they might be
responsible for the emotional harm they’ve caused. And in this case, a jury sided with
Albert Snyder. Westboro’s protest was going to cost them 10.9 million dollars.

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 WESTBORO MEMBER: I thank G-d for the 10.9 million dollar verdict because
it’s a small price to pay to get this message—America is doomed—in front of the
eyes of the whole world. You can’t pay for worldwide publicity that cheap!

MIKE: Adherents of the Westboro Baptist Church released a gleefully defiant video,
thanking G-d for the verdict against them. Again.

WESTBORO MEMBER: We thank G-d for the 10.9 million dollars because it
changes exactly nothing. The soldiers are still dying. G-d still hates fags. America
is still doomed. And you’re going to hell.

MIKE: And again.

WESTBORO MEMBER: Way to go America. You put us on trial for our religious
beliefs. You can’t bring back one dead soldier. All soldiers have been and are
dying in vain. Thanks G-d for 10.9 million.

MIKE: And again.

WESTBORO MEMBERS: Thank G-d for 10.9 million!

MATT: Westboro may have been publicly praising the verdict. But they were also
appealing it. Will Westboro have to pay nearly $11 million for being mean? Coming up
after the break, the Supreme Court gets the Last Judgment.

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 WESTBORO MEMBER (to the tune of “The Army Goes Rolling Along”):
Hating G-d, cowards’ hearts, Ziploc bags for body parts and your army goes
marching to hell.

MATT: On the morning of October 6th, 2010, members of the Westboro Baptist Church
were out picketing and singing parodies—not at a funeral this time but outside the
Supreme Court. Where oral arguments in Snyder v. Phelps were about to start.

ROBERT SIEGEL: When can picketers at a military funeral be sued for inflicting
emotional distress on the family of a dead soldier? The U.S. Supreme Court
struggled …
BRIAN WILLIAMS: They’re not being asked 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.
NEWSPERSON: Reporters asked whether the Phelps family ever considered the
Synder family’s feelings.
WESTBORO MEMBERS (to the tune of “Crazy Train”): Cryin’ ‘bout your
feelings; for your sin, no shame. You’re going straight to hell on your crazy train.
WESTBORO MEMBER: That’s our answer about feelings. Stop worshipping
your feelings and start obeying G-d.

MATT: NPR’s Nina Totenberg covered this case back in 2010. And she remembers
feeling puzzled by the methods of the Westboro Baptist Church.

NINA: Reverend Phelps, who I interviewed, was of the opinion that the United
States was going to hell because it tolerated homosexuality. And even though in
this case, the young man who'd been killed in Iraq—there was no suggestion he
was gay—it was the idea that this was a funeral of somebody who had
participated in the United States military action in Iraq, and therefore was gonna
be damned in hell because of the United States toleration of homosexual
behavior. Now If that sounds rational to you, it certainly never did to me.
MATT: But I wanna try to just put myself in their position. And to me it does make
sense. If you accept the premise that G-d has a certain way that He wants us all
to live, and we as a society are violating His rules, He's going to punish us. And
that might be by killing our soldiers. That makes sense, right? That logical
thought progression?
NINA: I mean it would make much more sense to picket the institutions.
MATT: So what doesn't make a lot of sense to you is just who they're choosing
...
NINA: Right.
MATT: … to picket.
NINA: It's not the same as saying, “I disapprove of, let’s say, gay marriage or
even a homosexual lifestyle and therefore I'm going to picket your restaurant,
let’s say, because you, you know, you have a lot of gay customers, you cater to
them.” I may not approve of that, but I understand it. The things that Reverend
Phelps said—I sat in a small booth doing this interview by phone—and I just sort

7
 of emerged after, I don’t know, 25 or 30 minutes going, "How do I make sense
out of that? How do I do that?"

MIKE: More to the point, how does the Supreme Court make sense out of that?

CJ ROBERTS: We’ll hear argument first today in Case 09-751, Snyder v.

Phelps.

MATT: Does the First Amendment protect the Westboro Baptist Church from being
sued for intentional infliction of emotional distress? When they inflicted that distress on a
private citizen? A father who was merely trying to remember his son with dignity?

SUMMERS: Mr. Chief Justice, and may it please the Court.

MATT: Here is Albert Snyder’s attorney, Sean Summers.

SUMMERS: We’re talking about a funeral. If context is ever going to matter,

it has to matter in the context of a funeral. Mr. Snyder simply wanted to
bury his son in a private, dignified manner. Right now the rule we’re stuck
with is Hustler v. Falwell for intentional infliction of emotional distress.

MATT: But the rule out of Hustler—that it’s okay to be mean to public figures—that
doesn’t fit this situation. Here’s Justice Ruth Bader Ginsburg questioning Sean
Summers.

GINSBURG: Your claim is that Falwell was a public figure and the Snyder
family is not. So I think what I got from your brief is you don’t fall under
that case because you’re not dealing with a public figure.
SUMMERS: That’s correct, Justice Ginsburg. The private targeted nature of
the speech in our judgment is what makes it unprotected.

MIKE: So Matt, lemme see if I have it right. The Westboro Baptist Church was being
mean to the Snyders, or inflicting emotional distress on the Snyders, however you want
to put it. And the Snyders are a private family at a funeral. They are off limits. That’s
what Snyder’s attorney is arguing.
MATT: That’s right. That’s what Snyder’s attorney is saying. That if you’re really mean
to a private person, you can’t just point to the First Amendment and say it lets you do
that.
MIKE: Of course, that’s, that’s for the Supreme Court to decide, right?
MATT: Right. There’s another argument coming. On the other side, the attorney for the
Westboro Baptist Church argues that it shouldn’t matter if you’re a private person. That
speech about public issues can be directed at anyone, even regular people, even the
family of a dead soldier, no matter how mean that speech is. Oh, and by the way, the
attorney for the Westboro Baptist Church? None other than Margie Phelps.

CJ ROBERTS: Miss Phelps.

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 PHELPS: Mr. Chief Justice, and may it please the Court. When members of
the Westboro Baptist Church entered an ongoing public discussion in
direct connection with the deaths and funerals of soldiers killed in Iraq and
Afghanistan, they did so with great circumspection. I believe that the
umbrella of protection under the First Amendment that this court has
established firmly is speech on public issues. Sometimes you get under
that umbrella because it’s a public figure, but the umbrella that you give the
protection for is speech on public issues.

MIKE: So Margie Phelps is arguing that it doesn’t matter if Albert Snyder and his family
are private people. What matters is that we’re talking about public issues, political
issues, IDEAS: war, gays in the military, abortion. This gets the highest amount of First
Amendment protection, even if it upsets people, because that all speaks to how we
want to organize ourselves as a society.
MATT: Yeah, it’s called “core political speech” and it’s always been protected no matter
what, but should it be? Even when the target of that speech is a grieving father? During
the oral argument, a major concern among the justices was that really almost anything
can be a public issue if you frame it that way. Do we want the umbrella of the First
Amendment to be so broad? Here’s Justice Anthony Kennedy.

KENNEDY: All of us in a pluralistic society have components to our

identity. We’re Republicans or Democrats, we’re Christians or atheists,
we’re single or married, we’re old or young. Any one of those things you
could turn into a public issue and follow a particular person around,
making that person the target of your comments.
PHELPS: Well, but again, this court has given substantial, longstanding
protection to speech on public issues, and how could it be gainsaid that
the dying soldiers is not on the lips of everyone in this country? And it is a
matter of great public interest and why they’re dying, and how G-d is
dealing with this nation. And so this little church …
KENNEDY: But your position is that you can take this and you can follow
any citizen around at any point.
PHELPS: Not follow.
KENNEDY: And it seems to me that you should help us in finding some line
there.
PHELPS: Yes, I will help you, Justice Kennedy, and I am pleased to do that.
Because we don't do follow-around in this church. We were a thousand feet
away, seven picketers, out of sight, out of sound.

MATT: Margie Phelps is saying, yes, it’s true, you can turn most issues into policy
discussions. But as long as you’re not actively following someone around ...
MIKE: Which would be harassment I guess, right?
MATT: Yeah. As long as you maintain a respectful distance, your speech should be
protected.

9
 PHELPS: We're speaking on issues of public concern in public places, complying
with all of the limits that the United States Supreme Court has imposed. We don't
get up in anyone's grill. We don't try to force the words on anyone. We don't
engage in civil disobedience. We don't intrude into private matters in private
places. It's the ultimate protected speech. And the only time the First Amendment
really matters in this country is when your speech is the dissenting, troubling,
angering, unpopular voice. Who needs the First Amendment for "G-d Bless
America"?

MATT: For a case where the justices seemed so conflicted during the oral argument,
the result was overwhelming: By a vote of 8-1, the Court ruled that the First Amendment
protects the right of the Westboro church members to speak their mind—no matter how
mean those words might be. That multimillion dollar judgment against Westboro? Gone.

MELISSA BLOCK: In a ruling today from the Supreme Court came this
reference to the First Amendment: This nation has chosen to protect even hurtful
speech on public issues. NPR’s Nina Totenberg reports, and we should warn
you, this story contains language that listeners may find offensive …
NINA TOTENBERG: Today’s 8-to-1 ruling may have surprised some people, but
not First Amendment scholars, whether right or left. They note that today’s ruling
falls right in line with others protecting the rights of fringe groups—from Nazis
marching in Skokie to flag burners at a Republican convention.

MATT: Here is Chief Justice John Roberts, delivering the opinion.

CJ ROBERTS: If there is a bedrock principle underlying the First

Amendment, it is that the Government may not prohibit the expression of
an idea simply because society finds the idea itself offensive or
disagreeable.

Westboro believes that America is morally flawed. Many Americans might

feel the same about Westboro. Westboro's funeral picketing is certainly
hurtful and its contribution to public discourse may be negligible. But
Westboro address matters of public import on public property in a peaceful
manner, in full compliance with the guidance of local officials.

Speech is powerful. It can stir people to action, move them to tears of both
joy and sorrow and, as it did here, inflict great pain. We cannot react to that
pain by punishing the speaker. As a nation, we have chosen a different
course, to protect even hurtful speech on public issues to ensure that we
do not stifle public debate. That choice requires that we shield Westboro
from tort liability for its picketing in this case.

VUOLO: Margie, do you understand how the speech that you engaged in at this
funeral could be never mind offensive, or inappropriate, or outrageous, or any of
those arguably subjective terms, but simply painful to a grieving parent?

10
 PHELPS: I really have to say to you with all humility, you've got to be kidding me.
This man is standing there looking at his young mangled son, and you think us
suggesting that the policies of this nation caused that, is more pain for him than
that blow G-d just dealt him? What we are trying to do is stop the pain. So, no. I
can't give any serious credence to that.
VUOLO: Well, I guess this is the sort of cognitive dissonance that I'm wrestling
with. I believe that you're motivated by a genuine and even a generous desire to
save souls, but why not say something like, "G-d condemns homosexuality," or
"G-d does not appreciate divorce," instead of "G-d hates fags"? In other words,
help me reconcile why it is that you use that incendiary language like, "Thank G-d
for dead soldiers," in order to make your point.
PHELPS: We have been picked to death about how we word these signs, and
that's good. I'm not complaining about that. I'm telling you that to say, we literally
every month sit down as a body and talk through how we word these signs.
Every word on every sign is scripturally proper. The fact that it is loathed by an
impenitent Bible rejecting nation is to be expected. If you watched your child
starting to run out into a highway, and you didn't snatch him back with every force
of your being, you'd be hateful, but we're trying to do the same thing about
eternity. That's not hate. That's brotherly kindness. That's brotherly love.

MATT: When the Supreme Court decision came down, Albert Snyder was really angry
at the Justices. Maybe it’s the time that’s passed, but, for whatever reason, he sees it
differently now.

SNYDER: My son fought and died for freedom of speech, and I do understand
what they did, and I may not have when the decision came down. I remember
being very upset, but the reality set in, and I started to reflect on everything. And I
realized that the Supreme Court made the right decision, as painful as it was.

MATT: Unprecedented is produced at WAMU, and edited by Poncie Rutsch. Ben Privot
is our audio engineer.
MIKE: Andi McDaniel is WAMU’s Head of Content.
MATT: WAMU’s general manager is J.J. Yore.
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MIKE: I gotta start doing that.
MATT: What?
MIKE: Tweeting.
MATT: You do, you’ve got followers now.
MIKE: Go to WAMU DOT org SLASH donate, and tell them you're giving because you
love Unprecedented.
MATT: Or just click the link in the show notes.

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MIKE: Or both.
MATT: Or both.

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