In its recent case Snyder v. Phelps The United States Supreme Court upheld a decision by the United States Circuit Court of Appeals that overturned a large monetary judgment against Fred Phelps, his family, and Westboro Baptist Church (which consists almost entirely of members of Phelps’ family) (hereafter “Westboro”) on the grounds that the First Amendment guarantee of freedom of speech shields Westboro from civil damages in lawsuits based on activities that constitute free speech. In this case the father of an American serviceman who had been killed in the line of duty sued Westboro for compensatory and punitive damages because Westboro had picketed his son’s funeral with their usual signs saying things like “Thank God for dead soldiers” and “God hates fags.” Westboro’s demonstration took place approximately 1,000 feet from the site of the funeral and in accordance with regulations of the appropriate local authorities governing demonstrations. Mr. Snyder saw the tops of Westboro’s signs, but he did not learn of their content until after the funeral. Mr. Snyder sued Westboro in federal court and won a large monetary judgment for both compensatory and punitive damages from a jury. The federal trial court reduced the award of punitive damages but otherwise let the jury’s verdict stand. The United States Circuit Court of Appeals for the Fourth Circuit overturned the judgment in favor of Mr. Snyder on First Amendment grounds. The Supreme Court accepted review of the case and, on March 2 of this year, affirmed the decision of the Circuit Court overturning Mr. Snyder’s judgment against Westboro. The Supreme Court held that while Westboro’s speech that led to the judgment might be despicable and hurtful, the First Amendment protects even such speech that others find despicable and hurtful. Chief Justice Roberts wrote the opinion of the Court. Six other justices of all political leanings joined in Roberts’ opinion. Justice Breyer filed a concurring opinion, meaning he agreed with the result but may have reached the result on the basis of different reasoning. Justice Alito filed a dissenting opinion, meaning that he would have affirmed the trial court and reinstated Mr. Snyder’s judgment against Westboro.
The Supreme Court’s decision in Snyder has been met with disbelief and anguish by many of my friends who find Fred Phelps and his actions to be despicable, hurtful, and un-Christian, as of course I do as well. Let us take it for granted, then, that Fred Phelps is a disgrace to the sacred name Christian, that he does not deserve the honorable title “Reverend” that the media always give him, and that his actions reveal both a personal and a social pathology far more than they say anything even remotely faithful to Jesus Christ. The issue here is not whether Fred Phelps and his actions are beyond deplorable. They are, and there really is no question about that fact. The issue in Snyder was actually a very narrow legal one, not a moral or theological one. The issue that the Supreme Court addressed was only whether the First Amendment to the United States Constitution protects persons who engage in speech within the law as established by competent local authorities from civil liability in favor persons who found the speech to be hurtful. And let us just assume that Westboro’s speech was indeed hurtful to Mr. Snyder as it certainly would be hurtful to anyone in his state of grief at the death of his son.
The Supreme Court held that yes, the First Amendment to the United States Constitution does protect persons engaging in such speech from such civil liability. In reaching its decision the Court held that Westboro’s speech here was public as opposed to private speech, a distinction in First Amendment law that can affect the level of constitutional protection the speech is afforded. Public speech on a public issue is afforded the highest level of constitutional protection. The Court held that that protection means in this case that the constitutionally protected speech at issue could not be the basis of a civil judgment for damages against the persons engaging in the speech. Allowing such civil liability for constitutionally protected speech would inhibit citizens in the exercise of their free speech rights.
I understand the emotional reaction many of my friends have against this decision. Indeed, I share it. It remains true, however, that it is precisely difficult cases like this one that test the strength of our commitment to free speech. In her biography of Voltaire the English writer Evelyn Beatrice Hall wrote “I disapprove of what you say, but I will defend the death your right to say it” to characterize Voltaire’s belief. The line is often misattributed to Voltaire himself. Whoever first penned it, this line brilliantly sums up the concept of freedom of speech. Freedom of speech has no meaning if it applies only to speech of which I, or you, or a majority of Americans approve. We need a constitutional guarantee of freedom of speech precisely because people must be free to say things with which other people disagree.
In the law world it is commonplace that difficult cases make bad law. This is a difficult case because Westboro’s speech is so hateful, is so hurtful. That’s why the Supreme Court’s decision strikes us as bad law. Yet I ask my friends who are upset by this decision to consider: To draw lines around speech on the basis of whether a majority of people find it hateful and even hurtful is to start us down a very dangerous path. I have said things in this blog, for example, that I’m sure would cause, indeed may have caused, some people to want to silence me because they so disagree with what I have to say. Many Americans, I’m sure, consider the things I have had to say about American imperialism and the military, for example, to be un-American and worthy of being censored. Yet I know that as an American I have the freedom to say what I believe, and no one has the right to stop me. I am not willing to give up that right even if it means that I must extend the same right to Fred Phelps, whose speech I consider to be nothing less than diabolical.
The extremely broad scope of our constitutional protection of freedom of speech is one way in which we Americans differ from many of our European cousins. The European Union has a law prohibiting hate speech, and some of its members have had such laws for a long time. Those laws are understandable. Historically in places like Austria and Germany they arose after World War II in response to the Holocaust and the anti-Semitic speech that fueled it. We can understand such laws, but America’s legal tradition is different. Freedom of speech is a foundational American value, and it has meaning for us primarily and particularly when it applies to speech we abhor.
It is easy to imagine a scenario in which our courts would reach a different result. If the Westboro people had violated the local regulations that kept them 1,000 feet away from the funeral, for example, or if they engaged in violence, they would have overstepped the limits of freedom of speech and forfeited their First Amendment protections. In this case, however, they did not do that. The Supreme Court’s decision in Snyder v. Phelps may be a hard one for us to accept, so despicable are Fred Phelps and his followers. I for one, however, will tolerate bigots like Fred Phelps rather than give up Americans’ historic and cherished freedom of speech.
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