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Response from Michael D. Peabody

Discussion Question: Did the Supreme Court Get it Right with Snyder v. Phelps?

The Supreme Court recently ruled 8 to 1 that members of the Topeka, Kansas-based Westboro Baptist Church are entitled to stage their controversial antigay protests even when they cause substantial injury to family members and others attending the funeral of a loved one.

Chief Justice John Roberts wrote the majority opinion stating, "What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous."

Do you agree with lone dissenter Justice Samuel Alito statement that "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," or did the Supreme Court get it right?


If there is one thing that Westboro Baptist Church leader Fred Phelps is known for, it is his aiblity to push the buttons of the nation. From the left's aversion to his message on homosexuality to the right's offense to his message about the military and disruption of funeral services, Phelps has not exactly captured the hearts of Americans but instead has managed to align a vast confederacy of liberals and conservatives in a league against his little church.

Phelps has explored the limits of the elasticity of the Constitution and bounced so far away from the center of the mores of the vast majority of Americans that the document is stretched to a point where it appears translucent and almost non-existent when it comes to his activities. It would only take the slightest disturbance in the surface, the slightest nail scratch along its surface, to expose a giant fissure through which Phelps and his cronies would fall and gloriously implode. Free speech? How about this - an $11 million civil judgment? And that's only one of the many potential plaintiffs out there who could extract their pound of flesh from these people who dared to say such offensive things.

Most of those arguing that the Supreme Court made the wrong decision in this case wish that this document preserving rights had such a hole designed with surgical precision and located directly beneath the members of the Westboro Baptist Church. In this way an aggrieved public could attain its catharsis by raining down its righteous anger and censorship. No, not only censor, but punish by millions civil penalties, fine, and whatever relief which the citizenry would find just and proper. Indeed, and not to be overly dramatic, not-too-distant history tells us how quickly the heretics of past generations became inmates and even martyrs.

However, upon inspection, the Supreme Court has rejected the notion that there must be some exception to the free speech provisions of the First Amendment for Phelps and his crew. There were some rules in place that Phelps did manage to follow. Factually speaking, the Westboro protestors were more than 1,000 feet away, and the father of the slain serviceman who filed the suit did not even learn about their presence until he watched the news reports the following day. In fact, if one were to trace it back, the direct offense to the father came from the news reporters who decided to spread the message of Phelps further by broadcasting it. But to question the freedom of the press to repeat an offensive message is absurd, so the church became the target of a multi-million dollar lawsuit.

Had the Supreme Court ruled against Fred Phelps, it would have had to draw lines in free speech, both on the circumstances of the communication and the content, such as distance away and the size and number of signs, and a host of other practical considerations. Either that, or leave that discretion to the states to decide, of which many are fond of imposing religious labels on their jurisdictions and legislating along the lines of theology.

And when it comes to the content, where does it exactly cross the line? What if the signs simply repeated a Bible verse calling homosexuality an abomination and another referencing God's condemnation? Would this affect other churches' rights to free speech and indeed free exercise? Could churches put up signs in neighborhoods across America referencing John 3:16 which, if you think about it, states that conversion to Christianity is the only way to avoid eternal death? Would preachers be able to use the public airwaves to broadcast these messages on the radio or television? Could they put up church signs with pithy messages calling Jesus Christ the ultimate "fire insurance."

It is not inconceivable that a precedent such as that created by an opposite to the Phelps decision would institute a firestorm of lawsuits against houses of worship across America, by money hungry "offended" plaintiffs seeking millions of dollars from the supposed deep pockets of denominations, and drown congregations in legal fees. Either that, or governments would seek to mitigate such exposure by instituting new rules about what churches could say and do in public. But, well, wouldn't that be unconstitutional? The truth is, we would soon find ourselves living in a vastly different America where the only defense would be a neutral secularism.

So, in short, the Supreme Court made the right decision and as a result, the promise of the First Amendment is now stronger for all of us.

Photo of Michael D. Peabody

Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”

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