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  • Protecting the Free Speech Rights of Those We Abhor

    Just as it did last year in the Citizens United decision, the Supreme Court today upheld the First Amendment in a virtually unanimous opinion in a very difficult case. In Snyder v. Phelps, the Court held that the First Amendment shields the Westboro Baptist Church from a state tort claim.

    Albert Snyder filed a lawsuit in Maryland against the founder and members of the church for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy after they picketed the funeral of Snyder’s son, Matthew Snyder, a Marine Lance Corporal killed in Iraq in the line of duty.

    The Westboro Church, which was founded by Fred Phelps 20 years ago, is infamous for its picketing of military funerals over its belief that God hates the United States—particularly its military—for tolerating homosexuality. Phelps and other members of his congregation staged a protest on the day of Matthew Snyder’s funeral on a public plot of land 1,000 feet from the church where the funeral was being held. They followed all of the instructions of local police, and the protest was peaceful, although it was full of hateful signs like “Thank God for Dead Soldiers.” Albert Snyder admitted that he could only see the tops of the picket signs as he drove to the funeral, although he saw what was written on them while watching a news broadcast later that night and read a truly outrageous “epic” poem written about how he and his wife had effectively “ripped” his son’s body apart and raised him for the devil.

    There is no question about the anguish that Snyder suffered due to this protest at a time of incalculable grief. A jury saw it that way and awarded Snyder both compensatory and punitive damages.

    But in an opinion written by Chief Justice John Roberts, the Supreme Court struck down the judgment. As Roberts pointed out, speech on public matters occupies the highest rung of protection under the First Amendment, even when that speech is “particularly hurtful.” As the Chief Justice wrote, the messages of the Westboro Church “may fall short of refined social or political commentary,” but the content of Westboro’s signs plainly related to public, rather than private, matters: the opinion of the church on “the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy.”

    Westboro’s choice of where and when to speak is not beyond the government’s regulatory reach—it is subject to reasonable time, place, and manner restrictions. The Court noted that new laws in Maryland will restrict the location of picketing even more, but Westboro had complied with the state law then in place for its picketing. The Court declined to extend the “captive audience doctrine” to the circumstances present in this case, because Westboro stayed well away from the memorial service and there was no interference with the funeral service itself.

    There is no question that Albert Snyder was absolutely right to be outraged at the horrible, hateful things being said by the Westboro Church at a time when his family was dealing with something that every parent never wants to face—the death of his or her child. Reasonable jurists (including Justice Samuel Alito) disagreed about whether this speech was so outrageous and the special facts of the case so unique that it constituted the tort of intentional infliction of emotional distress, but all the justices reminded us in the opinion today that the First Amendment normally protects even hateful, vile, and disgusting speech in the public square.

    Chief Justice Roberts’s final words on this issue are very powerful and illustrate not just the difficulty that the Court faced in this emotionally charged case but the basis of the First Amendment in our Bill of Rights:

    Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

    Justice Alito filed a passionate 14-page dissent, noting that the bereaved father is not a public figure, and yet, he suffered a “malevolent verbal attack … at a time of acute emotional vulnerability … [from which he] suffered severe and lasting emotional injury.” Alito argued that the protesters have almost limitless opportunities to express their views, even in a caustic manner, but vicious verbal attacks that constitute the tort of intentional infliction of emotional distress—including the requirement that the harm was severe (“so severe that no reasonable man could be expected to endure it”) and so outrageous to go beyond all bounds of decency—are not among them. In particular, Alito argued, funerals are recognized by society as special and worthy of special protection.

    This was one of those cases where bad facts or public opinion could have made bad law. But the Court did not allow public opinion or emotional appeals to govern this case. Whether citizens agree with the Court’s eight-member majority or Justice Alito on the facts of the case today, we should all be grateful that the justices take upholding free speech and the protections of the First Amendment so seriously, even when demagogues try to characterize their First Amendment decisions as nothing more than political decisions favoring certain people and entities they like.

    Co-authored by Todd Gaziano.

    Posted in Legal [slideshow_deploy]

    17 Responses to Protecting the Free Speech Rights of Those We Abhor

    1. Chris says:

      It is a distasteful, yet necessary scenario that these erstaz Christians (hardly befitting the "little Christs" that the term originally meant) have so polluted the waters of discourse with what Stormin' Norman referred to as Sadaam's "bovine scatology."

      Alas, as Corrie ten Boom's father noted, "Just because a mouse lives in the cookie jar, doesn't make it a cookie."

    2. Bobbie says:

      It's deeply disappointed how people will use what Mr. Snyder's son fought for, to belittle his son for doing it. At least the lowest of life are revealing themselves.

      My heart goes out to the family of Marine Lance Corporal, Mathew Snyder.

    3. Politics Alabama says:

      I disagree. The first amendment is intended to protect speech from government interference, not to shield those who speak from paying for damage caused by their words. In this case, whether Westboro was legally permitted to say these things wasn't at issue. The only thing at issue was if they could be held liable in civil court for the emotional damage caused by their words and actions.

      So, now the court has blessed Westboro, and they no longer have to worry about possible civil legal repercussions from their protests. How is this a good thing?

    4. Phil Davis, Florida says:

      Free Speech is a "Catch 22" situation. Damned if you stop it and painful to the ears on occasion even from the fringe. Therefore, Free Speech is absolutely critical! Even if major news agencies withhold information, slant the news, lie and under report important issues, Free Speech is paramount. If it were not for the Internet, the only news that would have gotten proper perspective would have been Talk Radio and Fox News. The Internet was crucial in getting the truth out to many, which highly influenced the past conservative takeover of the House! The truth has no agenda and will eventually get through the muck.

    5. An American, USA says:

      The next time you see a man or woman in uniform, take the time to thank they for their service to our country. Men & women like them – not the supreme court, not a president, not the congress, nor any other organization – secured the initial freedom of this country and allowed our constitution to take life. The men and women of America who take the same pledge to defend this country join the history of this nation and deserve our utmost respect as do their families in time of loss. These are the brave who paid the supreme sacrifice for securing the "rights" of these hate filled, money grubbing, despicable protesters.

      The rights of free speech come with responsibility – that's a concept too hard for the Supreme Court to grasp. Apparently they can spell "rights" but re-spon-si-bil-i-ty is a long word they can't contemplate. If you could lift the blindfold from Lady Justice, you would see the tears of shame for eight justices who soil the very flag of this country that is stained with the blood of our brothers and sisters in arms.

    6. george seaver, catau says:

      There is a solution to the Westboro Church insults superior to that offered by the SJC – it is the public virtue of a republic. 'A most simple thing: it is a love of the republic; it is a sensation, and not a consequence of acquired knowledge, a sensation that may be felt by the meanest as well as by the highest person in the state", as Montesquieu defined this essence of a republic in 1748.

      In 2005 in response to the Westboro Church's protest against a military funeral in Kansas, a few veterans got together and rode their motorcycles to the service to shielded the family from the protesters. The word spread, and within weeks the concept had reached across the United States, now protecting families from "peace and justice" as well as religious protesters. It is now organized in every state, is called the Patriot Guard Riders, and at the request of the families, brings 20 to 100 members to each service. The rules are: only come at the request of the families, form a flag-defined line between any protest and the family and be entirely cooperative with the family, the military and the funeral directors. There are now very few protests, but the PGR presence continues and is universally felt as a great comfort to those who have lost a soldier, as well as to the community as a whole. "We share your loss and come to honor his service" is the simple statement of the Patriot Guard Riders, a much more fundamental and understood statement than the elegance offered by lawyers, newspapers and a court.


      george seaver

      PGR member, Cape Cod, MA.

    7. Barbara says:

      One would have to follow the court proceedings to truly grasp the reasoning behind the 8 to 1 decision, a decision lacking recognition there is more than free speech at issue: who has the right to cause real mental/physical harm or intrude privacy rights. If it were just free speech the Westboro Baptist bunch could yell, wave their banners and signs on their own church property or a public park, not in the proximity of a private funeral. They seem like a hateful bunch who want to inflict maximum damage, not just yell their views. Doesn't seem very Christian.

      Hateful words are bullets, hand granades to one's physical being. The Westboro group should be held accountable for the mental/physical damage they cause.

      What about a group going to the Westboro Baptist Church during worship services to yell, wave banners, signs on the street protesting the congregation's hatred, and insensitvity to mankind.

    8. Lloyd Scallan (New O says:

      Where do we draw the line with policially correct free speach? This interpretation

      of the first amendment shows just how out of touch with realily and the American way of life this Supreme Court has become. I am a believer in free speach! But their must be limits. Those limits must be inforced by the people with or without

      the absurd stance by this politicially correct society run amuck.

    9. Pragmatic in Texas says:

      Mr. Seaver, it is because of citizens like yourself and your fellow- PGR members that I continue to hold onto the belief there are more good people in the U.S. than evil. God bless you and your organization. As a veteran and a mother of 2 airmen, I want to say thank you.

    10. Ken, Flovilla, GA says:

      [THE RIGHTS OF FREE SPEECH COME WITH RESPONSIBILITY – that’s a concept too hard for the Supreme Court to grasp. Apparently they can spell “rights” but re-spon-si-bil-i-ty is a long word they can’t contemplate. If you could lift the blindfold from Lady Justice, you would see the tears of shame for eight justices who soil the very flag of this country that is stained with the blood of our brothers and sisters in arms.]

      It’s about ‘justice’ not necessarily ‘the law’, if it ain’t spelled out in the book, these guy’s are clueless and so is half of America these days. It’s all about MY rights and to hell with my RESPONSIBILITIES. Is there no COMMON DECENCY anymore or has America declined to the point where it ALL has to be spelled out for us in a Law somewhere, so much for our home-taught morals or public education system. No wonder lawyers are the only ones makin’ any money.

    11. Casey says:

      I don't ride motorcycles (any more) but understand there is another group that stands between these protesters at military funerals. Does anyone know the name of that group? I'd like to be involved! Thanks

    12. concretebob Richmond says:

      Casey, its the Patriot Guard Riders, a member of which has already posted a very rational response to these asshats.

      The solution is to make life as uncomfortable as legally permissable whenever they show up. If they know they will be egged, tomatoed, smoke bombed and stink bombed if they show their ugly incestuous faces, they may, just may, decide the laundry bills are to high.

      Mr Seaver, thank you for doing a job you shouldn't have to.


    13. Blue Dog - Michigan says:

      I read Justice Alito's dissenting opinion on this case and feel that his opinion was just as cogent as the other 8 justicies opinions finding for the Phelps'es. My personal feeling is that no one has the right to cause pain for those burying their dead.

    14. grace schnakenberg t says:

      Freedom of speech is part of the freedom we have in our country. The political correctness that is becoming common is a tremendous threat to what we believe is freedom of speech. We must be mindful of our freedoms or we will lose them. People in general must think before they speak. Thank you.grs

    15. Claudia Smith Baytow says:

      Our God Given right to Life, Liberty and pursuit to happiness. We the people cannot allow the the government to take Our Constitutional Law from the American People. This is the most Radically Socialists that I have ever known in my lifetime. Defend our Freedoms from this tyranny takeover of our country. We cannot afford another day of this total corruption in our White House and The Rights of all Americans. They should all be impeached from the Rule of Laws which govern our Bill of Rights.

    16. Pingback: 1789 NewsWatch- Free Speech- Even When It’s Evil

    17. family stuff says:

      Technology has positively assisted in family activities and family stuff .

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