Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 2, 2011

SCOTUS Gets Snyder v. Phelps Exactly Right

by Stephen Littau

If there is one thing that unites most Americans of every political persuasion, it would be the universal disgust of Fred Phelps and his Westboro Baptist Church. Hell, even the KKK has distanced itself from this hate group ( a very small group that consists mostly of Phelps’ family).

All that said, even as disgusting, vile, and hateful as their speech is, even their speech is protected by the First Amendment. In a 8-1 ruling in Snyder v. Phelps, SCOTUS reached that very conclusion.

From Justice Roberts Opinion of the Court:

P12

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing “outrageous.”“Outrageousness,” however, is a highly malleable standard with “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.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the]speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted).

[…]

[P14 and 15]

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Justice Alito, the sole dissenting Justice also offered a very good observation about WBC’s activities:

Alito, J., dissenting

P4 and 5

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations […]

But of course, a small group picketing at any of these locations would have probably gone unnoticed.

[…]

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain.

In a free society, we have to accept that there will be people like Fred Phelps that we have to tolerate. It’s a very slippery slope to suggest that due to the offensive nature of WBC’s speech that the First Amendment doesn’t apply. As Justice Alito says here, the only reason why WBC chooses to picket funerals is because they know they will get publicity. The best thing the MSM can do is ignore them; don’t give them the free publicity they so crave. Phelps has a right to speak but not a right to be heard.

I have nothing but sympathy to the Snyder family and am very sorry they had to be subject to the hateful antics of Fred Phelps on the day they buried their son. The sad irony is, if not for the brave men like Matthew Snyder, Fred Phelps would not have the ability to express himself in the manner he does.

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  • Calvin

    No one should ever have to “tolerate” that kind of BS anywhere physically near or near the time of a funeral. More than slightly a jack ass to imply otherwise.

  • Pingback: Snyder v. Phelps, the verdict « Secular Shawshank

  • Dr. T

    @Calvin: The protest occurred at the same time as the funeral and at a nearby location, but objective reports indicated that the funeral itself was not affected. If they had been so loud that the funereral services could not be heard, then they could have been arrested for disturbing the peace or disorderly conduct.

  • http://thelibertypapers.org Stephen Littau

    I agree with Dr. T. One of the things Roberts points out is that Mr. Snyder wasn’t able to read the signs or anything when he was on the way to the funeral. He didn’t see the signs or anything about the protests until he saw it on the news that night.

    I would really like to see a media blackout of all of WBC’s protests in the future (though covering these court challenges is perfectly legit). They really are a small group and don’t merit the coverage they are getting.

  • John Newman

    The idea that Matthew Snyder fought and died protecting our freedoms is total nonsense.

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