Okay, so, this is one of those posts I have to preface by saying: If you disagree with the position I take here, I totally get it. I mean, I’m not apologizing for what I’m about to say, but I can understand why decent people would say “How could you possibly defend those people?”
But I’m not, of course, defending those people. I’m defending their First Amendment right to express their vile, distasteful, hateful ideas in public.
As you might have guessed by now, “those people” are Fred Phelps and the Westboro “Baptist” Church. No, I won’t link to their hate site, but you can Google the name if you really want to wallow in their pathological filth. And no, I won’t write the church’s name without sarcastic quotation marks around the word “Baptist,” because I’ve known way too many real Baptists in my day to shackle them with any connection to the odious Phelps clan and their bigoted horde. Phelps and his cult can call themselves “Baptist” all they like – heck, they can call themselves a church – but that doesn’t make it so.
Anyway, yesterday the Supreme Court released its opinion in Snyder v. Phelps, No. 09-751 (slip op. March 2, 2011), which upheld a decision by the United States Court of Appeals for the Fourth Circuit striking down a multi-million dollar jury verdict entered by the District Court in Maryland against Westboro “Baptist” and several members of the Phelps family (including Phelps himself) for intentional infliction of emotional distress arising out of Westboro “Baptist’s” picketing the funeral of Marine Lance Cpl. Matthew Snyder, who was killed while on active duty in Iraq. That’s a long way of saying this: After Phelps and six members of his family, who are also members of Westboro, picketed in the vicinity of Cpl. Snyder’s funeral, Cpl. Snyder’s father sued them and the church in the U.S. District Court for the District of Maryland, alleging they committed several torts under Maryland law, including intentional infliction of emotional distress. The jury entered a verdict in Snyder’s favor in the amount of $2.9 million for compensatory damages and $8 million in punitive damages. The District Court subsequently reduced the punitive damage award to $2.1 million, and the Phelpses and Westboro appealed the resulting decision to the Fourth Circuit Court of Appeals, which reversed the jury’s verdict on the grounds that the defendants’ conduct was protected by the First Amendment. (Snyder v. Phelps, slip op., pp. 3-4.) Yesterday, the Supreme Court agreed with the Fourth Circuit, which, of course, ends the matter.
In its opinion, the Supreme Court described the Phelps/Westboro protest this way:
Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”
The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. … That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. … The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. …
(Slip op., p. 2; citations omitted.)
At trial, Mr. Snyder offered considerable evidence that the protest caused him genuine mental anguish and complicated existing health problems, and that’s not surprising given that he had to endure not only the untimely death of his son in Iraq but the additional emotional torture of witnessing the Westboro “Baptist” hate machine, turned up to eleven, on the very day he laid his son to rest. But the Supreme Court held, correctly, I think, that although Phelps and his clan of hatemongers are genuinely despicable, Mr. Snyder’s suffering was not enough to override the First Amendment.
First, the Court explained that speech involving “public concerns” is entitled to greater First Amendment protection than speech relating to purely “private concerns”:
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ ... is ‘at the heart of the First Amendment's protection.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).
“‘[N]ot all speech is of equal First Amendment importance,’” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler [Magazine, Inc. v. Falwell, 485 U. S. 46, 50-51] at 56 [(1988)], (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145-147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).
(Slip op., pp 5-6.)
The Court then analyzed the nature of the challenged speech and concluded that, deranged though the Westboro crowd may be, “[t]he ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern’”; i.e., “the issues they highlight – 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 – are matters of public import.” (Slip op. at 8.) As such, Phelps’ and Westboro’s speech was entitled to the highest level of constitutional protection. And since Phelps’ and Westboro conducted their protest in a public space, obeyed police orders and complied fully with local law, they could not be held liable for damages in tort even if their protest caused genuine emotional distress:
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).
(Slip op. at 12.)
As I said at the outset, I’m quite certain that the Court reached the right conclusion here, but I take no pleasure in saying that. Phelps’ group is as hateful a bunch of bigots as you’ll ever find – but for better or worse, that’s exactly the kind of group the First Amendment protects. I take some solace in knowing that Westboro “Baptist” is nearly universally hated in America today; but if the First Amendment doesn’t protect the most hated people and the most hateful views, it doesn’t serve much purpose. Popularly held opinions and niceties really don’t need much protection in the law. What really matters is that the First Amendment is there to protect people who try to express an unpopular opinion, whether that opinion is unpopular because it’s politically radical, or challenges our preconceived notions and prejudices, or is just full of hate and bile.
But that I defend the Court’s decision in Snyder v. Phelps does not mean I defend Phelps and Westboro “Baptist,” nor am I naïve to the real dangers that their kind of hate speech presents. Because while the Phelps crowd are universally loathed and ridiculed, consider this example of raging Islamophobia that is, sadly, all to common on the American right:
Let’s not forget that vicious prejudice directed at American Muslims is not nearly as unpopular as Westboro “Baptist’s” unhinged bile – indeed, the views expressed in this video are accepted by a wide swath of conservative America. And these hateful views are enjoy the same First Amendment protection as Phelps’.© 2011 David P. von Ebers. All rights reserved.