The Westboro Baptist Church is a hate group. Its obsessively anti-gay founder, the Rev. Fred W. Phelps Sr., and Phelps’ family members who make up most of the congregation of his Topeka, Kan., church are hateful in thought and deed. No truly God-loving Christian would choose the funeral of a fallen serviceman to air such hateful views as “God hates fags” or “Thank God for dead soldiers.”
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards for example, “You’re Going to Hell” as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.