Let’s start by stating the obvi ous: The Westboro Baptist Church is a hateful, odious fringe sect, less a “church” than the extended family of founder and “pastor” Fred Phelps, that has picketed nearly 600 military funerals with signs like “Thank God for dead soldiers,” “Pray for more dead soldiers,” and “God hates fags.”
The Topeka-based “independent Baptist church” is animated by extreme anti-gay, anti-Semitic and anti-Catholic views, and blames America’s tolerance of homosexuality for what it sees as the country’s moral downfall.
In 2007, the “church” was sued by Albert Snyder — whose son Matthew, a Marine lance corporal, died in Iraq — after Phelps and his family picketed the funeral. In his suit, Snyder cited emotional distress and invasion of privacy, and a jury in Maryland found for Snyder and awarded him more than $10 million in damages, later reduced by half. The judgment was reversed on appeal in federal court on First Amendment grounds, and the Supreme Court agreed to hear the case.
Yesterday, in an 8-1 decision, the Supreme Court found in favor of the Westboro Baptist Church and denied Snyder any damages. It was right to do so.
If the First Amendment’s free-speech clause protects anything, it protects the most hateful of speech. If it protects anyone, it protects the meanest and worst among us. And if there is one class of speech protected above all others, it is political speech.
“Speech is powerful,” wrote Chief Justice Roberts for the majority. “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.”
Some are outraged. Justice Samuel Alito wrote a vigorous dissent: “The court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.”
Sarah Palin chimed in with a Tweet: “Common sense and decency absent as wacko ‘church’ allowed hate messages spewed at soldiers’ funerals, but we can’t invoke God’s name in the public square.”
Sorry: The outrage is understandable, but the law is clear. And the principle is crucial.
The case turned on the nature of Westboro’s speech, not its odious content. As the court noted in its finding, “The ‘content’ of Westboro’s signs plainly relates to public, rather than private matters — the political and moral conduct of the United States and its citizens, the fate of the nation, homosexuality in the military and scandals involving the Catholic clergy.” The context of the speech, said the court, cannot transform its fundamental nature.
For decades, the left has been waging war on speech it deems hateful. On our campuses — the least intellectually free precincts in America — politically correct speech codes have sprung up, inhibiting students from even thinking, much less saying or writing, what’s on their minds.
Even President Obama has gotten into the act, delivering a classless public rebuke to members of the court during his 2010 State of the Union speech, in reaction to the justices’ 5-4 ruling in the Citizens United case. That decision, much hated by the left, codified First Amendment protection for corporate speech and undid much of the damage of the ill-conceived McCain-Feingold campaign-finance law.
The Snyder v. Phelps and Citizens United decisions both make the same point: The government simply has no business regulating political speech, no matter whose ox is gored.
Still, the majority’s ruling hardly endorsed Westboro’s loathsome message, and noted that local officials may continue to regulate the nature of such protests. At the Snyder funeral, the demonstrators were on public land under police supervision, 1,000 feet away from the church, and out of sight of the mourners — well within Maryland’s current 100-foot restriction.
Wrote Roberts: “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. . . But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”
We live in a contentious, politically divisive time, one in which emotions run high. Inflammatory speech only serves to exacerbate tensions.
But, as long as peace is maintained, that is precisely its pur pose. The court was right to reaffirm it.
Michael Walsh, a former Time associate editor, is the author (as David Kahane) of “Rules for Rad ical Conservatives.”