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The Supreme Court Gets It Right On First Amendment Protection For Hurtful Speech

Posted on March 3 2011 4:00 pm

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The U.S. Supreme Court, by an 8-1 vote, upheld the First Amendment rights of the Westboro Baptist Church of Topeka Kansas to engage in a hateful protest at military funerals carrying signs with disgusting messages such as “America is Doomed,” “Thank God for Dead Soldiers,” and “God Hates Fags.”

As much as I despise what the Westboro Church stands for, I believe that the Supreme Court reached the right result. I see it as an important precedent to be used in the future against lawsuits from Islamist groups such as the Council on American Islamic Relations (CAIR) that are trying to use the courts to punish what they consider hate speech and defamation against Islam.

 I confess that in reaching this conclusion, I have gone through an evolution in my own thinking and have reversed the position that I expressed on this case in an earlier column. The reasoning of the Supreme Court’s majority opinion was compelling.

The Supreme Court case arose from the Westboro Church’s protest at the funeral of Marine Lance Corporal Matthew A. Snyder, who had died in Iraq. The protest followed what the church had done at hundreds of other funerals.

The Supreme Court rejected the claim by Lance Corporal Snyder’s father that the protest near the funeral of his son caused him a sufficient level of intentional infliction of emotional distress for which Westboro Church should be forced to compensate him under state tort law for peacefully expressing its hateful opinions on public morality, the military and the U.S. government.

The majority opinion, written by Chief Justice John Roberts, held that the Westboro Church’s protest, although hurtful in its message, was protected speech that related to political and social issues that are matters of public concern. Speech about public affairs, the Court reminded us, is the “essence of self-government,” warranting “special protection.”

Only Justice Samuel A. Alito Jr. dissented. He believed that the “vicious verbal assault” on the Snyders, whom are private citizens, not public figures, contributes nothing of value to debate over issues of public concern and, therefore, does not rise to the level of meriting protection under the First Amendment.

The Court majority concluded that Westboro’s means of communicating its views consisted of picketing in a public place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. In these circumstances, the Court held that the application of state tort law would punish Westboro for seeking to communicate  its views on matters of public concern without proportionately advancing the state’s interest in protecting its citizens against severe emotional harm.

The church members did not try to disrupt the funeral or incite a mob to attack people attending the funeral, which would not be protected speech. As odious, stupid and hateful as the Westboro Baptist Church’s views are to most Americans, they are opinions on issues of public interest which the church members were expressing on public property peacefully and in accordance with local law requirements . Therefore, the Supreme Court reasoned, they are entitled to First Amendment protection of free speech.

Justice Roberts summed up the Court’s reasoning this way:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The Reporters Committee for Freedom of the Press and twenty-one news organizations had filed a brief supporting the Westboro Church’s First Amendment rights. Thus, it was no surprise that Justice Roberts’ opinion received strong support from the editors of the New York Times and the Washington Post.

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