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?
Were I to have the opportunity to speak with the Snyders, I would suggest to them that - as paradoxical as it may sound - they view the Supreme Court decision (and for that matter, the activities of the Westboro Baptist Church members) as one of the greatest memorials to their sacrifice.
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.
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.
The High Court's free speech protection ruling in Snyder v. Phelps was indicative of the fact that the prevailing wisdom of collective common sense is alive and well. But by default it also serves as a warning to any individual or group who would test the limits of future common sense rulings.
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.