To Protect the First Amendment, Is It Necessary to Protect the Westboro Baptist Church?

In its decision in Synder v. Phelps, the Supreme Court gave First Amendment protection to another instance of outrageous speech. The principle upon which the decision was based is one we as a nation have been rightfully proud of from our very beginning: the protection of robust and controversial speech and debate over public issues.

But in this case, was it the right decision?

As the Court pointed out, for the past 20 years the congregation of Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for what the church believes is our nation’s tolerance of homosexuality, particularly in America’s military. The picketing has also condemned the Catholic Church for scandals involving its clergy.

While almost all Christians and Americans — in fact, most humans — might find their tactics abhorrent, it is undeniable that Westboro’s congregants are, shall we say, “dedicated” to their “cause.” In the incident that precipitated the court case, Westboro followers traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq. The picketing took place — in accordance with local law — on public land approximately 1,000 feet from the church where the funeral was held. Westboro displayed signs stating: “Thank God for dead soldiers,” Thank God for IEDs,” “FAGS doom nations” (implying that Snyder was gay, which he was not), “God hates you,” “America is doomed,” “Priests rape boys,” and “You are going to hell.”

Snyder’s father saw the signs while driving to the funeral but did not learn what was written on the signs until watching a news broadcast later that night. Snyder sued the church in state court for intentional infliction of emotional distress, and a jury held Westboro liable, with a verdict subsequently reduced to $5 million.

Yesterday, in an 8–1 decision, a Supreme Court majority held that the protesters were speaking to a matter of public concern, engaged in no violence, and following the instructions of local law-enforcement officers. The majority clearly tried to render a narrow decision limited to the particular facts of the case. In all probability, the only law really made by this decision is the expansion of the definition of speech “of public concern,” which the majority acknowledged was not well defined.

In his dissent, Justice Alito points out that it was Westboro’s strategy, as demonstrated in a number of instances, to publicize their picketing well in advance with press releases saying outrageous things about the deceased. Since the media is irresistibly drawn to the site of persons who are visibly in grief, he notes, the more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. He points out that this case involves a private person and a private funeral, and that infliction of emotional distress, clearly proven at trial, should not be shielded by the First Amendment simply because the clear attacks upon the deceased were bound with some statements involving public issues.

While the majority may have tried to keep its ruling narrowly focused, I do not believe they adequately addressed the problem raised by both Justice Alito and Justice Breyer in his concurring opinion:

[S]uppose that A were physically to assault B, knowing that that assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.

The implication of the majority opinion is that, while protected speech with regard to a matter of public concern can be restricted as to time and place (1,000 feet form the funeral home, for example), if the protesters can yell loud enough to inflict severe emotional distress upon a private citizen in violation of state law, that speech cannot be restricted.

The unanswered question is this: Was such a result necessary in order to protect free speech with regard to public issues?

I applaud the majority’s willingness to put aside their personal views as to the activities of litigants in order to uphold a principle of law. I only hope that they will be as willing to do so in non–First Amendment cases — for example, when they decide on the constitutionality of requiring an individual to purchase health insurance.

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