One thing that isn’t at issue today is whether or not the speech involved does offend, and intentionally so. The Fred Phelps family, organized as the Westboro Baptist Church, has appeared at funerals– mostly military, beginning in 2005 – with their blunt, hateful messages that the deaths are God’s direct punishment on America for tolerating homosexuality in society.
“God Hates Fags” and “Thank God for IEDs” (the “improvised explosive devices” used to kill U.S. soldiers in Iraq and Afghanistan) are not reasoned arguments for social change. But the court will have to decide whether such are protected speech nonetheless.
Last year a three-judge panel of the 4th U.S. Circuit Court of Appeals overturned an earlier Maryland jury verdict awarding Albert Snyder almost $11 million in damages – later reduced to $5 million – for emotional distress and invasion of privacy.
The Phelps family picketed the 2006 funeral of Snyder’s son, Marine Lance Cpl. Matthew Snyder in Westminster, Md., and later published online an “epic” with critical comments about the Snyder family. The appeals court noted that the online essay contained specific references to the deceased soldier and his parents but said it was protected speech since it primarily was about general issues of public concern.
Legalities aside, the Snyders win easily in the court of public opinion.
The family argues they were going through though the unimaginable anguish of burying their son, only to have the Phelps group intrude on their rights to conduct the funeral in privacy and according to their own religious beliefs. Snyder has testified he has suffered deep emotional scars from the Westboro church’s attacks during and after the funeral, and that he now cannot think of his son without recalling the picket signs.
But the U.S. Supreme Court exists to do its work outside of public opinion.
In the court of law, speech is far more protected than limited, particularly speech involving political or social issues. There’s nothing in the 45 words of the First Amendment that forbids speech that is deeply offensive, hateful or repugnant – even when most us might wish for an exception in cases like this.
The Phelps group will try to stake out some moral high ground today for their repellant actions: That their speech is protected by the First Amendment because it stems from religious beliefs, and that it was intended to bring a needed message to the nation – not targeted to wreak emotional havoc on the Snyder family.
Theories abound as to why the Supreme Court even took on the case. Those who see merit in the Snyders’ legal claims note the justices generally do not take cases just to agree with an appellate decision. They hope the court will set out a new exception to the First Amendment, perhaps protecting the privacy of funerals and upholding a right to seek damages for emotional suffering in such cases.
But the reluctant advocates for the Westboro free-speech arguments point to high court decisions last term that generally are considered to have gone counter to popular views while upholding freedom of speech. In one, the court struck down a law a law intended to ban certain videos involving cruelty to animals, saying the law was too broad and threatened legal activity such as instructional hunting films. And in the other, the justices reversed long-standing laws precluding companies from certain kinds of spending involving political campaigns.
Our history is replete with those who brought highly criticized, unpopular messages to the nation and that likely brought distress to many who heard them. Consider abolitionists, suffragettes, anti-war protesters and civil rights advocates. All voiced ideas and ideals that challenged public opinion and that many tried to suppress. Those groups offered hope along with challenge, where the Phelps family offers only hateful slogans and disdain for others. History, in my view, never will place the Phelps family in such historic company.
But true freedom of speech makes no such distinctions – or allows such special exceptions – in protecting participants in the marketplace of ideas. Even when it hurts.
Gene Policinski is vice president/executive director of the First Amendment Center.