The right to hate

It’s hard to imagine a more despicable message than the notion that U.S. combat deaths in Iraq are God’s just punishment for America’s tolerance of gays and lesbians. But that is precisely why a Kansas church preaching that demented doctrine must receive the protection of the 1st Amendment. Those on society’s margins -- and sometimes its weirdos -- are those whose speech needs protecting.

A federal jury in Baltimore has stripped such protection from Westboro Baptist Church by ordering the church to pay $11 million in damages to the family of a Marine killed in Iraq. Members of the church had picketed outside the funeral of Lance Cpl. Matthew Snyder, carrying signs that read: “Fag troops,” “God hates the USA” and “God hates you!” Although they didn’t obstruct entrance to the Catholic church where Snyder’s funeral was held, the jury found that the protesters -- including Westboro pastor Fred Phelps -- were liable for invasion of privacy and intentional infliction of emotional distress.

American law has long allowed individuals to seek damages for invasion of privacy and infliction of emotional distress. But the U.S. Supreme Court has made it clear that such lawsuits must be viewed in light of the 1st Amendment’s protection for what the late Chief Justice William H. Rehnquist called “the free flow of ideas and opinions on matters of public interest and concern.”

The 1st Amendment doesn’t require that mourners -- or anyone else -- put up with face-to-face insults or intimidation or trespassing on private property. The high court has upheld the constitutionality of injunctions preventing antiabortion protesters from harassing women outside clinics. And Congress, reacting to Westboro’s protests, last year passed the Respect for America’s Fallen Heroes Act, which establishes buffer zones around military cemeteries during burials.

But while military families can and should be protected from the disruption of services for their loved ones, they have no right to insist that Phelps and his followers be silenced or banned from the view or hearing of anyone who might be distressed by their message. And if upheld on appeal, multimillion-dollar damage awards for “emotional distress” could have just that effect.

In a dissent whose wisdom was later embraced by a majority of the Supreme Court, Justice Oliver Wendell Holmes Jr. wrote in 1919 that “we should be eternally vigilant against attempts to check the expression of opinions that we loathe.” Holmes was referring to speech opposing U.S. involvement in World War I. That speech was principled. The rants of the Westboro Baptist Church are loathsome. Both are constitutional.