PHILADELPHIA (Reuters) - The actions of an anti-gay Kansas church that pickets military funerals and tramples on the American flag have become important tests of the limits of U.S. free speech, constitutional experts said.
A Maryland jury last week ordered Westboro Baptist Church, its founder Fred Phelps and his two daughters to pay $10.9 million to the family of a Marine who died in Iraq, after members of the church picketed his funeral holding signs including "God hates fags" and "You're going to hell."
The Topeka-based church believes the death of U.S. service people in Iraq is God's punishment for U.S. toleration of homosexuality. Its protests are aimed at the government rather than the sexuality of the dead soldiers.
On Monday, Shirley Phelps-Roper, one of Phelps's daughters, appeared in a Nebraska court charged with violating a state law that bans flag desecration after she allowed her son to stand on the flag at another funeral protest, one of about 300 the church has held in the last two years.
Phelps-Roper was legally exercising her dissent against a national symbol, and therefore the Nebraska law under which she is charged is unconstitutional, said her lawyer Bassel El-Kasaby.
The Supreme Court upheld the right to desecrate the flag in 1989 when it struck down Texas's conviction of Gregory Lee Johnson, a communist who burned a flag, El-Kasaby said.
"I don't agree with my client," El-Kasaby, who was hired by the American Civil Liberties Union, told Reuters. "However, I do respect and cherish the right that we all have to dissent, and that's why I'm defending her in this case."
Robert O'Neil, director of the Virginia-based Thomas Jefferson Center for Free Expression, said the Maryland decision, which is being appealed, is likely to become a crucial test for what kind of speech is protected by the U.S. Constitution.
"This certainly pushes the limits of tolerance for the protection of hateful speech," O'Neil said.
He said many Western countries place legal limits on speech that is, for example, racist, sexist, or homophobic, but that the United States does not.
The appeal is likely to turn not only on whether Westboro's speech was protected but also whether U.S. District Judge Richard Bennett's instructions to the jury on the First Amendment were too broad, O'Neil said.
Bennett warned jurors that speech is not always protected, especially if it is "vulgar," "offensive" or "shocking."
The Supreme Court in Texas v. Johnson stopped short of declaring that all forms of flag desecration were protected by the First Amendment, O'Neil said.
The Baltimore jury awarded much larger-than-expected damages after concluding that church members had invaded the privacy of the soldier's family and intentionally inflicted emotional distress on them at his Maryland funeral.
But if protest is politically motivated, it is protected under the First Amendment even if Westboro's slogans such as "Thank God for dead soldiers" are offensive to many people, said Robert Corn-Revere, a constitutional lawyer at the Washington, D.C., law firm Davis Wright Tremaine LLP.
"They are not directed to this soldier in particular," Corn-Revere said. "They are making a political point."
Other forms of political protest such as the anti-abortion movement may be accompanied by unpleasant or uncomfortable language or images but that speech is also protected, he said.
"When you start limiting public debate because of its ugliness, you go down a very dangerous path," he said.
Editing by Jason Szep and Eric Walsh