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Response from Alan E. Brownstein

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?


Because the Westboro church members were picketing 1000 feet away from the funeral service in a place they were told to stand by local police, and the mourners could not see the protestor's offensive signs while entering or leaving the church, the Supreme Court's decision in Snyder v. Phelps was not unexpected. If we depart from the specific facts of this case, however, the problem of the Westboro church members' protests at funerals raises at least two troubling free speech issues.

First, unlike many cases involving offensive speech, the Westboro church members are not particularly interested in communicating with the mourners at the funeral services they picket. Their goal is to reach the general public with their hateful message. If church members expressed their message in a more neutral location, however, few people would pay any attention to their bizarre beliefs. Westboro church members picket funerals of American soldiers killed in the line of duty because doing so is such outrageously hurtful and despicable conduct that it inevitably attracts media attention.

Put simply, Westboro church members inflict emotional suffering on grieving family and friends to create a stage prop that expands the audience for their message. Thus, the church members do not really talk to mourners. They use them as an amplifying tool. In a sense, they conscript them into serving as the backdrop and amplifier for the Westboro church's bigoted expression. We can at least ask whether there is any limit to the protection provided by the free speech clause of the First Amendment to speakers who entangle non-consenting third parties into playing a role in the expression of their beliefs.

Second, freedom of speech is worthy of the constitutional protection and respect it receives because speech has the power to inform and to persuade. In fulfilling this basic function speech can be offensive and painful to hear. These very real costs are the price we pay for this very valuable, but very expensive political good.

But expression has to power to interfere with and disturb other activities, even when it is not fulfilling its informational or persuasive function. Some human activities require an environment of tranquility, respect, spirituality or other attributes that can be completely transformed and disrupted by hostile expressive activity. Should all such activities be vulnerable to expression that is fundamentally incompatible with their essential nature?

Assume an inter-racial couple, or an inter-faith couple, or a same-sex couple is getting married. Some people may oppose any or all of these marital relationships. Does anyone doubt the impact on the wedding party that will result from pickets standing directly outside of the house of worship immediately before and after the wedding occurs and denouncing the race, religion or sexual orientation of the marital couple? And does anyone believe that the picketing of a wedding will inform or persuade the wedding party of the merits of the protestors' message? A similar question can be asked if protestors picket funerals, as was true in Snyder v. Phelps, or other kinds of life cycle events such as baptisms, or bar mitzvahs. Again, we can at least ask whether there is any limit to the protection provided by the free speech clause of the First Amendment to expression that is so incompatible with the nearby activity it targets that the speech neither informs nor persuades its audience. It's primary if not exclusive impact is to disrupt the ability ofothers to grieve at funerals, celebrate at weddings or other life cycle events,or worship on days of special reverence.

Photo of Alan E. Brownstein

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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