The right to be vile

Faced with a conflict between freedom of speech and the protection of grieving parents from abuse, the Supreme Court on Wednesday made the only choice allowed by the 1st Amendment. It ruled in favor of Pastor Fred Phelps and his Westboro Baptist Church, which pickets military funerals claiming that the deaths of service members are divine retribution for America’s toleration of homosexuality.

Westboro Baptist had been sued by the father of Lance Cpl. Matthew A. Snyder, a Marine killed in Iraq. Protesters from the church had gathered outside Snyder’s funeral holding signs reading “God hates the USA/Thank God for 9/11,” “America is doomed,” “Don’t pray for the USA,” “Thank God for IEDs,” “Thank God for dead soldiers,” “Pope in Hell,” “Priests rape boys,” “God hates fags,” “You’re going to hell” and “God hates you.”

Speaking for an 8-1 majority, Chief Justice John G. Roberts Jr. persuasively countered three arguments against Phelps, who was ordered by a trial court to pay Snyder damages for intentional infliction of emotional distress.

First, Roberts responded to the claim that Phelps and the other protesters invaded the funeral. He noted that not only were the protesters 1,000 feet away but that Snyder’s father couldn’t read their signs. Furthermore, Roberts noted, “None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing.”


Second, Roberts said that Westboro’s anti-gay and anti-Catholic rants involved matters of public concern of the sort protected by the 1st Amendment. “The ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large,” he wrote, adding that “the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military and scandals involving the Catholic clergy — are matters of public import.”

Finally and most important, Roberts emphasized that the outrageousness of Westboro’s speech didn’t deprive it of 1st Amendment protection. He cited a passage from the 1989 decision in which the court ruled that protesters had the right to burn the American flag: “If there is a bedrock principle underlying the 1st Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Although this case was described as a difficult one for the court, in fact the outcome was based on well-established principles. That explains why eight justices — liberals and conservatives — voted to affirm the church’s right to free speech. That will be little consolation to Snyder’s father, or others who thought that the Westboro Baptist Church crossed a legal as well as a moral line. But it’s the right decision.

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