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Response from Richard W. Garnett

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?

Chief Justice Roberts was right to remind us that, contrary to the old "sticks and stones" adage, speech can cause harm; it can and does hurt, wound, and damage, and our law should not pretend otherwise. The freedom of speech serves and reflects important values, but the dignity of every human person is a value that our laws should recognize and protect, too. And, to an extent, it does: Justice Alito was correct, in his dissenting opinion, when he insisted that our constitutional commitment to free speech does not mean that speakers have an absolute license – a free pass – to harm others through cruel, vicious, and degrading personal attacks. At the end of the day, though, the Court's decision in the Phelps case was the right one. The specific content and context of the offensive speech at issue in this particular case (i.e., a lawful gathering in a public place, a substantial distance from the private funeral in question) is such that – despite its offensiveness – the First Amendment should protect it from punishment through a jury's money-damages award.

Photo of Richard W. Garnett

Author: Richard W. Garnett

Richard W. Garnett is an Associate Dean and Professor of Law at the University of Notre Dame School of Law. Professor Garnett teaches and writes about the freedoms of speech, association, and religion, and also about constitutional law more generally. He is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society. He has published widely on these matters, and is the author of dozens of law-review articles and book chapters. His current research project, Two There Are: Understanding the Separation of Church and State, will be published by Cambridge University Press. He is the founding director of Notre Dame Law School’s new Program in Church, State, and Society, an interdisciplinary project that focuses on the role of religious institutions, communities, and authorities in the social order.

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