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Westboro Baptist Church's protected speech

I don’t know if there’s a hell, but if it exists, Rev. Fred Phelps and other members of the Westboro Baptist Church deserve a place. In this world, their repulsive actions are shielded by the Constitution.

Phelps and his Topeka, Kan., flock believe that "God is cursing America" -- and killing U.S. soldiers -- for assorted sins, including homosexuality, divorce and adultery. They have come up with a particularly offensive way of delivering their message: protesting at the military funerals with signs such as "Thank God for Dead Soldiers" and "You're Going to Hell."

The church members protested outside the Westminster, Md., funeral of Marine Lance Cpl. Matthew Snyder, killed in Iraq in 2006, and followed up with an "epic" poem on the Web asserting that Snyder’s parents "raised him for the devil" and that "God rose up Matthew for the very purpose of striking him down."

Snyder's father, Albert, sued for intentional infliction of emotional distress and invasion privacy. A jury awarded $11 million, but a federal appeals court overturned the damages, ruling that the statements, while "utterly distasteful," were protected by the First Amendment because they "involve matters of public concern."

The Supreme Court heard Snyder's appeal this week, and the justices seemed torn about how to resolve the case -- or, perhaps more important, the implications of how they resolve it for other free speech cases.

"I'm looking for a line" that would allow damages in outrageous situations yet not "prevent somebody from getting out a public message," Justice Stephen Breyer told the church's lawyer, Margie Phelps, who is also the daughter of Fred Phelps.

"I fully accept you're entitled in some circumstances to speak about any political issue you want," added Justice Sonia Sotomayor. "But what's the line between doing that and then personalizing it and creating hardship to an individual?"

I'm doubtful that line can be adequately drawn, which is why the appeals court was correct in throwing out the damage award. But I also think this case is less agonizing than meets the eye.

The most appalling part of Westboro's conduct is "hijacking solemn funeral proceedings for their own hateful purposes at the expense of grieving American families," as a friend-of-the-court brief filed on Snyder's behalf by the attorneys general of 48 states and the District of Columbia put it.

Yet there is another way to protect the sanctity of funerals and to shield grieving families than to sock protesters with million-dollar damage awards. Indeed, as the states themselves point out, the federal government and 46 states have enacted laws that regulate protests around funerals. The court has long permitted such "time, place and manner" restrictions as consistent with the First Amendment. The justices could easily throw out the damage award without threatening the viability of these statutes.

In fact, although Maryland's law was not in place at the time, the Westboro protesters complied with police instructions about where to stand, several hundred feet from the funeral procession. From where he was, Snyder could see only the tops of the offending signs; he did not know what they said until he watched the television coverage several hours later. The service was not disrupted.

Indeed, the most hateful part of Westboro's speech was the poem, with its individualized attack on Matthew Snyder and his parents. The most hateful -- but also the most dangerous to expose to a damages claim. The document was posted a month after the funeral on the church's website. Snyder found it surfing the Web.

If this speech is subject to punitive damages, what principle protects the offensive blogger or the outrageous commenter?

The court wrestled with a similar question in 1988, in a case involving Hustler magazine's caricature of evangelist Jerry Falwell in a drunken, incestuous encounter with his mother in an outhouse. Could that depiction be punished without endangering traditional political cartoons?

"If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm," Chief Justice William Rehnquist wrote for the court. "But we doubt that there is any such standard."

Albert Snyder is a more sympathetic figure than Falwell, and he was thrust into the limelight by tragedy, not by choice. But the court's wisdom remains as true.

By Ruth Marcus  | October 7, 2010; 3:01 PM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Comments

You fail to mention that anti-war protesters were present at the same funeral, should they be fined and punished as well? The freedom of speech cuts both ways...

Posted by: Phil6 | October 7, 2010 5:14 PM | Report abuse

This would have to be an awful burden for the Court.

There is no doubt that the Phelps family message has no socially redeeming value and certainly no sympathy from the great majority of the American populace. These bigots are without any doubt whatsoever, some of the most hateful people ever to walk the earth.

I have to wonder what the GOOD Baptists of this country think of the "Rev." Phelps and the Westboro Baptist Church. Were there any real justice in this matter, the citizens of the Baptist community should deal with these people in the best way possible, by excluding them from their national congregation and disavowing any connection to them whatever. Surely nothing in their actions qualifies them to be a part of the Christian community. It is even difficult to think of them as part of the human race!

Posted by: OregonStorm | October 7, 2010 5:32 PM | Report abuse

OregonStorm,

fwiw, the creeps from Westboro are members of NO Baptist convention/denomination whatever & share NO communication with any of our churches to my knowledge.
(i'm a Baptist layman/college grad, with numerous contacts within the various groups & that was the info that i was told by the senior professor of "Ministry" at our "College of Religion".)

"the Westboro crowd" are just as free to use the name "Baptist" as they are free, under the First Amendment, to disrupt funerals & make FOOLS of themselves.
(we Baptists just WISH that they had picked something/anything else for a title!)

yours, TN46

Posted by: texasnative46 | October 7, 2010 5:42 PM | Report abuse

The First Amendment is not a blanket for abusive and hurtful demonstrations.
Even speech that enjoys the most extensive First Amendment protection may be subject to
“regulations of the time, place, and manner of expression which are content-neutral, are narrowly
tailored to serve a significant government interest, and leave open ample alternative channels of
communication.”112 In the case in which this language appears, the Supreme Court allowed a city
ordinance that banned picketing “before or about” any residence to be enforced to prevent
picketing outside the residence of a doctor who performed abortions, even though the picketing
occurred on a public street. The Court noted that “[t]he First Amendment permits the government
to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the
objectionable speech.”113
112 Frisby v. Schultz, 487 U.S. 474, 481 (1988).
113 Id. at 487.

Posted by: lorrisavoie43 | October 7, 2010 6:16 PM | Report abuse

Westboro is a professional hate group which travels from state to state spreading this repulsive garbage. All of Phelp's offspring are attorneys and have been very adept so far at exploiting the law. The fourth circuit ruled too narrowly in overturnibg the Maryland courts. The first amendment must not be turned into an unlimited right to defame,intimidate or otherwise inflict emotional harm. The defedendants were aware that their actions would inflict emotional harm and recklesly proceeded to do just that. If the court does not draw a line here there is a risk that there will be a physical confrontation or even worse someone may use what Sharon Angle called the second amendment solution.

Posted by: rant | October 7, 2010 6:23 PM | Report abuse

There was a time when men could legally defend their honor against defamation and libel with a choice of weapons – a pistol or a sword. Today our system of justice provides us an alternative in the courts and before a jury of our peers.
This is the issue before the Supreme Court. It is not as simple as the First Amendment rights of freedom of speech, assembly and religion. The Constitution protects those rights without qualifications, while giving states the rights to make laws that provide individuals with protection and recourse from malicious abuses of those freedoms.

In this case a jury decided that the preacher who led his congregants in the demonstration used his Constitutional freedoms intentionally to support his religious beliefs in a perverse and malicious way. It awarded the father of the deceased Marine, Lance Cpl. Matthew A. Snyder, $5 million for the pain and anguish he suffered as a result of the demonstration. The protests may have been a peaceful assembly, but the protester along the route of the funeral procession defamed the deceased soldier, unable to defend his own honor against the homophobic signs that portrayed the impression that he was gay.

While I have defended the First Amendment rights of Muslims to exercise their faith by building their mosque near “Ground Zero,” one could accuse my distaste of the irreverent actions of church members in this case as being hypocritical. This is a question of conscience and I have asked myself, “ If it were my son or daughter being welcomed home in a flagged draped casket on the way to a final resting place and greeted with hateful signs and messages, how would I feel?” My answer is that the actions of the pastor and his parishioners are not only shamefully but also disrespectful of all persons in our military, whether gay or straight, who offer their lives in defense of the very freedoms that these “righteous” folks feel they have the right to abuse. To quote Thomas Jefferson, a defender of religious freedom, "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes." --Thomas Jefferson to Alexander von Humboldt, 1813.

Frank Adler, Syracuse, NY

Posted by: fjasyr | October 7, 2010 7:04 PM | Report abuse

The Phelps family is obnoxious and offensive, but they are entitled to the same First Amendment free speech rights as all other Americans.

Giving their demonstrations less news coverage and counter-protesting silently would seem good ways to object.

Posted by: CarolAnne1 | October 7, 2010 7:04 PM | Report abuse

There was a time when men could legally defend their honor against defamation and libel with a choice of weapons – a pistol or a sword. Today our system of justice provides us an alternative in the courts and before a jury of our peers.
This is the issue before the Supreme Court. It is not as simple as the First Amendment rights of freedom of speech, assembly and religion. The Constitution protects those rights without qualifications, while giving states the rights to make laws that provide individuals with protection and recourse from malicious abuses of those freedoms.

In this case a jury decided that the preacher who led his congregants in the demonstration used his Constitutional freedoms intentionally to support his religious beliefs in a perverse and malicious way. It awarded the father of the deceased Marine, Lance Cpl. Matthew A. Snyder, $5 million for the pain and anguish he suffered as a result of the demonstration. The protests may have been a peaceful assembly, but the protester along the route of the funeral procession defamed the deceased soldier, unable to defend his own honor against the homophobic signs that portrayed the impression that he was gay.

While I have defended the First Amendment rights of Muslims to exercise their faith by building their mosque near “Ground Zero,” one could accuse my distaste of the irreverent actions of church members in this case as being hypocritical. This is a question of conscience and I have asked myself, “ If it were my son or daughter being welcomed home in a flagged draped casket on the way to a final resting place and greeted with hateful signs and messages, how would I feel?” My answer is that the actions of the pastor and his parishioners are not only shamefully but also disrespectful of all persons in our military, whether gay or straight, who offer their lives in defense of the very freedoms that these “righteous” folks feel they have the right to abuse. To quote Thomas Jefferson, a defender of religious freedom, "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes." --Thomas Jefferson to Alexander von Humboldt, 1813.

Frank Adler, Syracuse, NY

Posted by: fjasyr | October 7, 2010 7:05 PM | Report abuse

God hates everyone at the westboro baptist Church and they should all be executed

Posted by: capsfan10 | October 7, 2010 7:16 PM | Report abuse

God hates everyone at the westboro baptist Church and they should all be executed

Posted by: capsfan10 | October 7, 2010 7:17 PM | Report abuse

God hates everyone at the westboro baptist Church and they should all be executed

Posted by: capsfan10 | October 7, 2010 7:18 PM | Report abuse

Snyder will lose, because the under lying facts of the original case don't support Snyder's alledged harm. This is a First Amendment case only to the extent that Synder's claim wasn't enough to overcome Phelpses First Amendment rights. The Courts decision will leave open the possibility of free speech, that intentional inflicts emotional pain and suffering, is not protected speech.

Posted by: Frazil | October 7, 2010 8:45 PM | Report abuse

The right of free speech is not absolute; libelous statements (like the poem posted on the Westboro cult's website) are not entitled to First Amendment protection and the Snyder family is entitled to damages for the intentional infliction of emotional distress.

People that compare this case to the Falwell case are totally missing the bigger picture. Falwell was an evil hypocrite masquerading as a minister of Christ's gospel and publicly spreading his hate in the public forum; therefore he was a public figure and, as such, a fitting subject for satire, however inartful or disgusting it was. Lance Corporeal Snyder was a private citizen who had given the last full measure for his country and his family was entitled to bury him with the dignity and honor he deserved. THAT is what makes this distinctly different from the Falwell case: Mr. Phelps and his family may spread their hate in a public forum (like, sadly, at the Shepard murder trial) but they are not entitled to use a family's private and most sacred moment as a PR platform to draw attention to their beliefs.

Like Ms. Marcus, I long for the day Mr. Phelps is greeted by Mr. Falwell in Hell. In the meantime, he and his progeny should leave our dead soldiers and their families alone. Reinstating the damage award would go a long way in making that happen.

Posted by: Ryuho | October 7, 2010 9:01 PM | Report abuse

Has anyone ever inquired about the psychology of Fred's obsession with homosexuality?

Posted by: Kansan11 | October 7, 2010 9:34 PM | Report abuse

Did not know about the distance factor. Like it or not, Mr. Phelps assuredly possesses the right to say whatever he wishes out of earshot of the funeral. Sort of like saying all persons with lung cancer should die miserable deaths 100 feet from a cancer ward having made the evil decision to smoke; nothing anyone can do about this but ignore it.

Posted by: Martial | October 7, 2010 10:16 PM | Report abuse

The "church" is operating as a PAC. Thus any tax exemptions based on religious reasoning should be denied. It is not necessary to tamper with free speech.

Posted by: sobi1 | October 7, 2010 10:31 PM | Report abuse

It isn't Baptist and it isn't a church. It is more akin to the Manson gang and should get the same treatment they did.

Posted by: rusty3 | October 7, 2010 10:48 PM | Report abuse

Mr. Phelps' act was no crime and hence was of less public interest than a hoary streetwalker's selling her antiquated wares or a crapulous driver's being pulled off the highway. Somehow those stories never make the evening news. Neither should this nonsense.

Posted by: Martial | October 7, 2010 10:58 PM | Report abuse

"I disapprove of what you say, but I will defend to the death your right to say it"- Evelyn Beatrice Hall

Most of us have heard this said, and some of us have said it ourselves. These words are remembered because they are very hard to live up to. Cpl Snyder actually did so and the Westboro people benefit from it. They should at least respect him enough to acknowledge that and act appropriately.

Posted by: allknowingguy | October 7, 2010 11:06 PM | Report abuse

Why was this even reported? You don't see nut cases carrying "the world is ending" signs on the news. Neither do you see public urination on the news. Neither do you see rats on the news. Even if it were to garner higher ratings from cruel viewers, I doubt whether any ethical news agency would daily show videos of blind people stumbling along the street.

Posted by: Martial | October 7, 2010 11:18 PM | Report abuse

There's irony....

You're saying that they deserve a place in hell because they said that someone else deserves a place in hell. If they deserve a place in hell for saying that, don't you also deserve a place in hell?

Posted by: reston75 | October 8, 2010 12:23 AM | Report abuse

Someone should dig up the article from the Topeka, Kansas, Capitol or Journal (I forget which) about some of Phelps's children who are no longer in contact with him. It came out in the late 1970s or 1980s, I think. The incident involving one of Phelps's sons was particularly instructive. "Rev." Phelps appears to have had anger and hatred problems that go back before long before his public displays of homophobia.

Posted by: dnice1 | October 8, 2010 12:24 AM | Report abuse

The question in this case is whether it is the message or the medium, the method of getting out the message that is offensive. Clearly, as noted above, protests at funerals are acceptable, as noted war protesters have long participated in these.

And the medium is quite effective. I doubt otherwise any of us would have heard either of this church or its message, that God has cursed America because of its social policies toward gays.

Therefore it is the message that people find offensive. Both its content and its cruel method of expression. That of course is censorship of free speech, especially speech we both find offensive and with which we disagree.

Ultimately this church is protesting government action, so they are assembling to petition the government. Its medium is really no different than that used by the gay movement from its post-Stonewall founding, of shocking people to get out the message -- dressing like Nuns at the parade ultimately is as offensive as protesting at funerals.

Ms. Marcus is right in this case. Due respect for the full set of First Amendment righs applies: religion, speech, assmelby and petition.

Posted by: krush01 | October 8, 2010 6:03 AM | Report abuse

There is not conflict:

When Hustler published the parody, Falwell was a public figure.

The Westboro protests made Matthew Snyder a public figure.

Therefore, the parody on Falwell is protected speech. The poem about Matthew Snyder is not.

Privacy still means something!

Posted by: AMviennaVA | October 8, 2010 7:55 AM | Report abuse

to all,

personally, as an old (and daily getting older - chuckle.) soldier, i'd like to take a baseball bat to "the preacher", every time he & his coven of CRAZIES/BIGOTS/HATERS disrupt the funeral of an HONORABLE war-fighter.

yours, TN46
USA, Retired

Posted by: texasnative46 | October 8, 2010 5:27 PM | Report abuse

Legal Question: Margie Phelps testified that they only held up signs, when evidence to the contrary exists that they also yell hate filled messages at these funerals can she be disbarred for purjury in a court of law? Also if it can be demonstrated to the court that her statements were false, would it call into question all of her testimony as the lawyer presenting the case? Finally if it were so proven, how would it affect the courts decision?

Posted by: altec1 | October 9, 2010 3:14 AM | Report abuse

As offensive as the Phelps' are, SCOTUS can decide this case without doing harm to the First Amendment. The justices can, and should, uphold the appellate court decision. However, they can also write an opinion that heaps molten lead upon their heads (see the book of Job). More importantly, ordinary citizens can counter this hate-filled speech with love-filled speech each. Each time these despicable excuses for human beings make an appearance, they must be called-out. Most importantly, every decent church, synagogue, mosque, etc., must take a stand against these people of hate.

Posted by: pgbach | October 10, 2010 3:29 PM | Report abuse

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