01 April 2010


By Andy Weddington
Friday, 02 April 2010

Today's Commentary is pretty simple. So straightforward it will be. Though "intellectuals" (e.g. lawyers) would like you to believe it's complicated, and beyond resolution even through gentlemanly and scholarly discourse by the most highly educated. Baloney! The problem, if there really is one, is resolved by the most commonest of men of principle through compliance with the simplest of concepts--"the spirit"--an important element of civility and justice. Hold that thought.

Here goes...

"I had one chance to bury my son, and they took the dignity away from it." Albert Snyder

Lance Corporal Matthew Snyder, USMC, a member of Combat Service Support Group-1, 1st Marine Logistics Group, I Marine Expeditionary Force, Twentynine Palms, California, died on 03 March 2006 in a non-combat related vehicular accident in the Al Anbar province, Iraq. A hero? You bet!

Lance Corporal Snyder, having not yet reached his 21st birthday, was buried in Westminster, Maryland, on Friday, 10 March 2006 (ironically, the day of my retirement ceremony).

The young Marine's funeral was not without controversy.

A radical Baptist minister by the name of Fred Phelps was behind that controversy. And still is.

Fifty-five years ago Phelps founded (and has been the only pastor) of the Westboro Baptist Church in Topeka, Kansas. According to court documents, the church's flock numbers 60-70 with approximately 50 being children, grandchildren, and in-laws. The church, as member described, is a "fire and brimstone" sect with no tolerance for, among other things, homosexuality; especially in the military.

For whatever reason, the God-fearing Baptists of Westboro decided they could garner national attention for their causes by voicing their vile messages at military funerals. They were right. Phelps and a handful of followers picketed, with despicable signs and shouts, Lance Corporal Snyder's funeral and posted related material (described as an "Epic") on the Internet.

Responding to what can only be described as unconscionable behavior by the Phelps' clan at military funerals and interrupting the normal grieving process, Lance Corporal Snyder's father, Albert, filed a civil lawsuit against Phelps and the Westboro Baptist Church to "bring an end to the reign of terror and abuse that they inflicted" upon grieving families of United States military personnel killed in Iraq and Afghanistan.

The case, tried in the United States District Court for the District of Maryland, at Baltimore, in 2007 with Judge Richard D. Bennett presiding, ended in Snyder's favor with a $5 million award.

On appeal, Snyder v. Phelps was argued before the United States Court of Appeals for the Fourth Circuit on 02 December 2008 with decision reached on 24 September 2009. Judges Robert B. King and Allyson K. Duncan reversed the lower court's decision citing protection of First Amendment rights. Judge Dennis W. Shedd  likewise concurred with reversal but on different grounds.

Following are excerpts from the appeal decision...

From page 27

"Accordingly, we are constrained to agree that these signs — "America is Doomed," "God Hates the USA/Thank God for 9/11," "Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Don’t Pray for the USA," "Thank God for IEDs," "Priests Rape Boys," and "God Hates Fags" — are entitled to First Amendment protection."

From page 31

"Notwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and Epic are constitutionally protected. To paraphrase our distinguished colleague Judge Hall, judges defending the Constitution "must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people."

From page 32

"Nonetheless, the various states and localities, as well as grieving families, may yet protect the sanctity of solemn occasions such as funerals and memorials. Indeed, governmental bodies are entitled to place reasonable and content-neutral time, place, and manner restrictions on activities that are otherwise constitutionally protected. Some "breathing space" for contentious speech is essential, however, under the Free Speech Clause. See New York Times, 376 U.S. at 272. As the Court long ago emphasized: To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy. Cantwell v. Connecticut, 310 U.S. 296, 310 (1940). Because the judgment attaches tort liability to constitutionally protected speech, the district court erred in declining to award judgment as a matter of law."

"Pursuant to the foregoing, the judgment of the district court is reversed and the various appeal bonds are hereby discharged."

From page 40

"The Phelps never intruded upon a private place because their protest occurred at all times in a public place that was designated by the police and located approximately 1,000 feet from the funeral. Further, the Phelps never confronted Snyder, and Snyder admits he could not see the protest. Finally, there was no intrusion because the evidence is undisputed that the church service was never disrupted. The Phelps never entered the church, and they stopped protesting when the church service began. In sum, I would hold the funeral protest did not intrude upon Snyder’s seclusion."

From page 43

"In this case, Snyder asserts that the protest was extreme and outrageous because the funeral was disrupted by having the procession re-routed; his grieving process was disrupted by his having to worry about his daughters observing the Phelps’ protest; and the Phelps’ messages on their protest signs were focused on his family. As earlier noted, the protest was confined to a public area under supervision and regulation of local law enforcement and did not disrupt the church service. Although reasonable people may disagree about the appropriateness of the Phelps’ protest, this conduct simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law. Further, to the extent Snyder asserts the "epic" as a basis for this tort, I would find the "epic," which the district court found to be non-defamatory as a matter of law, is not sufficient to support a finding of extreme and outrageous conduct. Therefore, I believe the verdict on Count Two must be reversed."

The excerpts are provided as the essence and a mere taste of the opinion. It simply is not practical for a comprehensive review in this Commentary. Visit: http://pacer.ca4.uscourts.gov/opinion.pdf/081026.P.pdf to read the entire document (which can be done in about 20 minutes). Visit: http://www.ca4.uscourts.gov/ to learn more about the Fourth Circuit Court.

As incredible as it seems, the Fourth Circuit not only reversed the lower court's decision but ordered Snyder to pay Phelps' $16,510 court costs.

As Snyder told Fox News on Tuesday of this week, "I don't think I'm going to be writing a check until I hear from the Supreme Court. I'm not about to pay them anything." The case is being appealed to the United States Supreme Court as our land's high court agreed to consider whether First Amendment rights extend to the protesters' message or their message violates the privacy and religious rights of the mourners.

Covering the matter on his program, "The O'Reilly Factor," on Tuesday evening, anchor Bill O'Reilly, disgusted by Phelps and his followers, stepped up and said he would pay the court costs for Snyder; if it came down to that. In our goofy judicial system that oft times defies common sense, it just might. Nightly O'Reilly has a "Pinheads and Patriots" segment just before closing out the program with viewer pithy email. He should feature himself one night soon on this case. Bill O'Reilly a patriot--surely. Phelps et.al. pinheads--what do you think?

How ironic, and sickening, is it that a minister and his following are of the sentiment when referring to men and women in uniform, "These turkeys are not heroes. They are lazy, incompetent idiots looking for jobs because they're not qualified for honest work." cited in the complaint filed in the United States District Court, District of Maryland, are protected by a man like Lance Corporal Snyder and hundreds of thousands like him (men and women) who continue to volunteer knowing they are likely to go to war? Only in America.

Lance Corporal Snyder's sister, Cathy, told a reporter with the Baltimore Sun shortly after her brother's death, "It sounds so cliché, but he died doing what he wanted to do. He always wanted to be a Marine."

Every single person living under the protection of the United States, especially Phelps and his shameless flock, should be grateful America is still producing men, and women, like Lance Corporal Matthew Snyder. For without them there would be no hope.

Where has respect for self-sacrifice, for our fallen warriors, for civility and common decency toward fellow man gone?

To anwer that question now back to "the spirit" idea raised in the opening paragraph. Daydreaming back some 27 years ago about the responsibilities of supervising recruit training aboard Marine Corps Recruit Depot, Parris Island--where Lance Corporal Snyder and countless others are transformed into Marines--everything was guided by the SOP (Standard Operating Procedure)--to the letter and "the spirit."

"The spirit" was more important. These days I wonder more and more about the absence of "the spirit" when applied to law; for it is impossible to write the letter to address everything. Impossible. It simply cannot be done. That is the very reason why "the spirit" is so important. For without binding application of "the spirit" we perpetually face at the least distasteful and the worst unsolvable problems; therefore a losing cause.

Clearly, not all those anchoring seats on the bench are serving us well as due respect for "the spirit" is missing from their "intellectualness." Damn well know that 27 years ago, and I don't think it's changed, senior officers on Parris Island had little tolerance for Drill Instructors and company grade officers (first line supervisors) who compromised "the spirit" of training. And the line of demarcation, though fuzzy in theory, was in reality crystal clear. As is crystal clear the wrongness of anyone picketing funerals of our nation's warriors.

Lance Corporal Snyder did his duty. We'll see if the Supreme Court justices can get right what the Fourth Circuit judges could not. And for those quick to scoff, let's not forget that concept known as "the spirit" goes to morals and doing what is right, and in the United States of America court rooms still operate under the Bible and an oath swearing to the Creator.

Rest in peace, Marine. Taps. Semper Fidelis.

Post Script

To learn more about Lance Corporal Snyder, his father's cause, and to make a donation, if so inclined and able, toward legal fees for the brief to be filed with the Supreme Court visit: http://www.matthewsnyder.org/

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