Reporting from Washington — Despite free-speech concerns, Supreme Court justices sounded sympathetic Wednesday to a lawsuit filed by the father of a Marine killed in Iraq whose funeral was picketed by protesters with signs like, "Thank God for IEDs."
The justices appeared inclined to set a limit to freedom of speech when ordinary citizens are targeted with especially personal and hurtful attacks. The 1st Amendment says the government may not restrict free speech, but it is less clear when it shields speakers from private lawsuits.
The Phelps family from Topeka, Kan., has picketed at military funerals across the nation and proclaimed that God is punishing America and its troops because of its tolerance of homosexuality.
In 2006, family members traveled to Maryland, where they held antiwar and anti-gay signs at the funeral of Marine Lance Cpl. Matthew Snyder, and they also put on their website a message that accused his father, Albert Snyder, of having raised his son "to defy the creator" and "serve the devil."
A Maryland court awarded Snyder $5 million in damages, but the award was thrown out on free-speech grounds.
Justices Anthony M. Kennedy and Stephen G. Breyer, usual defenders of the 1st Amendment, said they thought people could be sued for outrageous personal attacks.
Kennedy said "certain harassing conduct" was not always protected as free speech. "Torts and crimes are committed with words all the time," he said, referring to legal wrongs that result in lawsuits. "The 1st Amendment doesn't stop state tort law in appropriate circumstances," Breyer added.
Though the case is about funeral protests, Breyer said the court's ruling will have an effect on the Internet, because it tests whether vicious personal attacks — often made by bloggers — can lead to lawsuits.
Snyder sued the Phelps family under a common provision of state law that permits claims for an intentional infliction of emotional distress.
On Wednesday, the justices seemed to agree that a general protest sign, such as "Stop the War" or even "Thank God for Dead Soldiers" would be protected as free speech. The Phelps family crossed the line when it targeted the dead Marine's father with their protest, argued Sean E. Summers, a lawyer for Snyder. "We have personal, targeted epithets directed at the Snyder family," he said.
Justice Elena Kagan, the newest member of the court, drew the attention of her colleagues with her opening question to Margie J. Phelps. The Kansas lawyer who was defending her family began by saying that their protests were intended to provoke "public discussion" about the wars in Iraq and Afghanistan.
Kagan quickly pressed her. Would it be permissible, she asked, for the protesters to pick out "a wounded soldier and follow him around," holding "offensive and outrageous signs" near his home and calling him a "war criminal?" In such a case, "does he have a claim for intentional infliction of emotional distress?" Kagan said.
Phelps hesitated, but then answered. "My answer, Justice Kagan, is no, I don't believe that person should have a cause of action."
That answer appeared to turn the argument against Phelps and the funeral protesters. Later, Justice Samuel A. Alito pressed her with another such example.
Suppose protesters stopped a grandmother whose son had been killed in the war, and they "speak to her in the most vile terms" and say they were happy he was killed. Is this protected free speech? Alito asked.
Phelps responded calmly, but avoided a direct answer. It might be illegal "stalking" or "fighting words," she said.
Alito dismissed the "fighting words" defense. "It's an elderly person. She's really not in a position to punch this person in the nose," he said.
Justice Ruth Bader Ginsburg took the free-speech side during much of the argument. She noted that protesters were kept well away from the funeral in this case, and they were sued only because of their disturbing message. But she too seemed troubled by the protests.
"This is a case about exploiting a private family's grief," she said. "The question is: Why should the 1st Amendment tolerate exploiting this Marine's family when you have so many other forums for getting across your message?"
Breyer and several others said they were searching for a middle ground that would allow the Snyders to win, but not threaten wide-open public debate. "What I'm trying to accomplish is to allow this tort to exist, but not allow it to interfere with an important public message," he said.
It will be several months before the court makes a ruling in the case.