Reporting from Williamsburg, Va. — More than 500 mourners walked quietly through rows of flags and into a white chapel on a recent Saturday afternoon to honor a dead soldier.
Army Lt. Todd Weaver was remembered as a scholar, athlete and born leader. He served in Iraq after high school, graduated Phi Beta Kappa from the College of William and Mary two years ago and was killed by a roadside bomb in Afghanistan on Sept. 9. He left behind a wife and a 1-year-old daughter.
But before entering the church parking lot, the mourners drove past an unusual demonstration. Scores of flag-waving bikers and students stood near the corner, surrounding three women holding brightly colored signs. They read: "Thank God for Dead Soldiers," "God Hates Fags" and "You're Going to Hell."
Shirley Phelps-Roper and her two daughters are determined to go where they are not wanted and to spread their message that U.S. soldiers are fighting to promote tolerance of homosexuality. Their funeral pickets have prompted new laws across the nation to keep them away from grieving families.
When the Supreme Court opens its new term this week, the justices will be confronted with a potentially momentous question. Are vile and hurtful words always protected as free speech, even when the target is a private person, not a public figure?
The case of Snyder vs. Phelps, in which a jury in Maryland awarded the father of a dead Marine almost $11 million in damages against the Phelps family after a funeral incident in 2006, is one of two major 1st Amendment issues to be heard this fall.
The justices also will decide whether California and other states can limit the sale of violent video games to minors. So far, such laws have been struck down on free-speech grounds.
And the court will rule on other major issues, including whether employees can be forced to reveal their private lives in order to work on government jobs and whether states can punish employers who hire illegal immigrants.
The ruling on the funeral protesters could upset the common view that the Constitution protects wide-open free speech on the streets and on the Internet. In the past, the high court's great pronouncements on the 1st Amendment have protected protesters and publishers who clash with the government or with public officials.
The Phelps case poses a different issue. They have not gone just to the Pentagon or the White House to protest the sending of soldiers to war. Instead, they have picketed grieving families and derided the parents for having raised their young men to "serve the devil."
"We are saying you must obey God," Phelps-Roper said amid the counter-protesters last week. "He is punishing you for disobeying."
Her elderly father, Fred Phelps, founded the Westboro Baptist Church in Topeka, Kan., and in recent years, his daughters and granddaughters have traveled the country to spread his "fire and brimstone" message.
Albert Snyder, the father of the dead Marine, admitted he did not see the protesters or their signs on the day of his son's funeral, except in the television coverage. A few weeks later, however, he read a screed posted by Phelps-Roper on her website that denounced "satanic Catholicism" — the Snyders are Catholics — and accused Snyder and his wife of raising their son Matt to "defy his creator."
Snyder sued and alleged an intentional infliction of emotional distress. The trial judge upheld the jury's verdict, but reduced the $10.9 million damages to $5 million.
Last year, however, the U.S. 4th Circuit Court of Appeals threw out the entire verdict and said the Phelpses' signs and messages were "constitutionally protected" speech.
To the surprise and dismay of 1st Amendment champions, the Supreme Court voted to hear the father's appeal and to decide whether a private figure can sue if he is the "target of hateful speech."
"It would be a sweeping change" if the court were to uphold Snyder's lawsuit, said Robert Corn-Revere, a 1st Amendment lawyer in Washington. "Where do you draw the line between public and private?" he asked, if protesters on a public street can be sued because their message is hurtful.
A ruling in favor of the Marine's father also could have a big effect on the Internet, because bloggers often attack non-public figures with mean and hurtful comments.
Nonetheless, Stanford University law professor Michael McConnell thinks the court will say the Constitution does not shield the Phelps family. Snyder "is not a public figure. He is a private person" who was the target of a hateful protest, McConnell said.
Stephen McAllister, former dean of the University of Kansas School of Law, says he too thinks the high court will lean in favor of upholding the lawsuit. "This is not just about punishing an offensive message. It is about their methods and tactics. They chose a private funeral and a grieving family to publicize their message," he said. "It is targeted to cause severe emotional distress."
The case will be heard Wednesday.
Taylor Reveley, president of the College of William and Mary, spoke at the funeral for Weaver. He described the protest as troubling but best left ignored. "They had no impact. They were kept well away from the church," he said.
He compared the protesters to the Florida minister who gained worldwide attention for threatening to burn the Koran. "If these people didn't get any publicity, they would go away. But we are much better off as a society if we let people protest, even if their views are abhorrent," he said.