The father of a fallen Marine sued members of a Kansas church who had used his son’s funeral to spread their message that God is punishing the United States for its tolerance of homosexuality by killing its soldiers.
“We’re talking about a funeral,” Sean E. Summers, a lawyer for the father, Albert Snyder, told the justices. “Mr. Snyder simply wanted to bury his son in a private, dignified manner.”
The lawyer on the other side, Margie J. Phelps, said the First Amendment protected the protest, where seven pickets at some distance from the funeral carried signs with messages like “Thank God for dead soldiers” and “God hates you.”
Ms. Phelps is a daughter of the pastor of the church, Westboro Baptist Church of Topeka, Kan. Her argument alternated between smooth exposition of First Amendment doctrine and support for the church’s message.
“Nation, hear this little church,” she said. “If you want them to stop dying, stop sinning.”
Justice Ruth Bader Ginsburg noted that state and local governments had enacted laws creating content-neutral buffer zones around funerals. She suggested that those sorts of laws were a better response to protests than allowing private-injury suits.
Justice Samuel A. Alito Jr. said the existence of a buffer zone imposed by law did not necessarily pre-empt other remedies.
Mr. Snyder won an $11 million jury verdict against the pastor, Fred W. Phelps Sr., and his church, for intentional infliction of emotional distress, which required proof of outrageous conduct, and for invasion of privacy. But a federal appeals court overturned the verdict on First Amendment grounds.
The argument on Wednesday featured disputes about the facts and a parade of hypothetical alternatives.
Mr. Summers said that some of the signs made the fallen Marine, Lance Cpl. Matthew A. Snyder, and his family their targets, including one that said, “You’re going to hell.”
Justice Ginsburg noted that the church used those signs at many protests. “It sounds like the ‘you’ was the whole society, the whole rotten society in their view,” she said.
Mr. Summers then made a concession that some justices seemed to view as problematic, saying that his client would have had no case if the signs were purely political protests against, say, the war in Iraq.
“So the intrusion upon the privacy of the funeral is out of the case,” Justice Antonin Scalia mused.
Mr. Summers tried to distinguish his case from the leading decision in this area, Hustler Magazine v. Falwell in 1988, which overturned a jury award in favor of the Rev. Jerry Falwell for intentional infliction of emotional distress. That case involved a public figure, Mr. Summers said, while Mr. Snyder was a private one.
Justice Elena Kagan responded with a quotation from the Falwell decision.
“ ‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression,” she said, quoting Chief Justice William H. Rehnquist’s majority opinion.
“How is that sentence less implicated,” Justice Kagan asked, “in a case about a private figure than a case about a public figure?”
Mr. Summers said private grief raised different issues.
Justices Kagan and Alito asked Ms. Phelps questions about other sorts of potentially hurtful conduct, like following a wounded soldier around or accosting a grandmother after a visit to a soldier’s grave. Ms. Phelps for the most part parried the questions, saying that antistalking laws and the “fighting words” exception to the First Amendment could address those situations.
The Reporters Committee for Freedom of the Press and 21 news organizations, including The New York Times Company, filed a brief supporting the Kansas church. It said the First Amendment protects even hateful speech on matters of public concern.
Before the argument in the case, Snyder v. Phelps, No., 09-751, members of the church protested outside the Supreme Court. Abigail Phelps, another of Mr. Phelps’s daughters, carried a sign that said “America is doomed.”
Ms. Phelps said she expected the court to rule in favor of the church. “They’re going to uphold the law of the land that you may express a contrary view in a public forum without being sued,” she said.