The right to speak offensively

The Supreme Court will hear arguments Wednesday in a case that sorely tests the principle, articulated by Justice Oliver Wendell Holmes Jr. nearly a century ago, that “we should be eternally vigilant against attempts to check the expression of opinions that we loathe.”

The case involves the Westboro Baptist Church, a deranged anti-gay religious group that routinely shows up at the funerals of American soldiers to express its bizarre belief that U.S. combat deaths are divine retribution for America’s tolerance of homosexuality. In 2006, the group picketed the funeral of Lance Cpl. Matthew A. Snyder, a Marine killed in Iraq. The protesters held signs reading “Thank God for Dead Soldiers,” “You’re Going to Hell’ and “Semper fi Fags.”

Snyder’s father sued the church for “intentional infliction of emotional distress” and other civil wrongs, but a lower court held that the picketers were protected under the 1st Amendment. The Supreme Court is now being asked to reverse that decision.

The justices may be tempted to rule against the protesters out of understandable sympathy for Snyder’s father. They should resist the temptation. Allowing even private figures to recover damages for distress caused by the political or religious speech of others would be a dramatic departure from the court’s protection of free expression no matter how offensive. And it would have reverberations in settings far removed from military funerals.

This case is not about whether protesters can be prevented from engaging in face-to-face harassment of mourners. The picketers complied with local ordinances and police instructions and stood a safe distance — 1,000 feet, according to an appeals court judge — away from the Catholic church where Snyder’s funeral took place. Albert Snyder, the dead Marine’s father, didn’t see their signs until he watched television later in the day. As a brief from a group of 1st Amendment scholars puts it, Snyder is complaining not of physical interference but of “psychological intrusions stemming from the content of the protesters’ message.”

That’s clear from the fact that Snyder’s suit is also based on a screed posted on the Internet by a church member several weeks after the funeral. It alleged that the elder Snyder and his ex-wife had “taught Matthew to defy his creator,” “raised him for the devil” and “taught him that God was a liar.” The U.S. 4th Circuit Court of Appeals ruled, correctly, that a reasonable reader “would understand it to contain rhetorical hyperbole, and not actual, provable facts about Snyder and his son.”

The appeals court’s most important finding was that the church, however outrageously, was addressing matters of public concern, just as Jerry Falwell and Pat Robertson were when they suggested that the 9/11 terrorist attacks were God’s punishment for toleration of abortion and homosexuality. No doubt that statement caused emotional distress for relatives of 9/11 victims, but it was constitutionally protected. The court should rule that the 1st Amendment also protects the ravings of the Westboro Baptist Church.