For Free Speech to Matter, It Must Protect the Worst of the Worst

October 4^th was the first day of the Supreme Court’s Fall Term. While this term has few blockbuster cases on its docket, it started off with a bang: Snyder v. Phelps is set to be one of the first cases that the court hears this term (oral arguments scheduled for Oct. 6). This case involves the Westboro Baptist Church, a militantly anti-gay organization based on Topeka, Kansas.

When just about any tragic event happens somewhere in the world, they immediately issue a press release claiming that the event was God’s will, punishing America, or the world at large, for its sinful ways. Recently, they’ve gained a huge amount of attention picketing the funerals of American soldiers killed in Iraq and Afghanistan, claiming that their deaths are God’s punishment for America’s tolerance of homosexuality. Their funeral protests use all of the same vile, hateful language that they’ve become known for.

Understandably, the families of some of these soldiers were extremely upset to have to listen to the hateful nonsense spouted off by this “church” while burying a loved one. One family filed a lawsuit for intentional infliction of emotional distress. A jury awarded them $11 million. However, the church appealed, and a federal appeals court reversed the judgment and vacated the jury award, finding that their conduct was protected by the First Amendment’s guarantee of free speech and assembly.

This week, the Supreme Court will hear oral arguments on the issue.

As much as it pains me to say it, and as much as I despise the message that Westboro Baptist preaches, I believe that their conduct is protected by the First Amendment. In addition, a few states have passed laws against protests at funerals. The laws are worded very generally, but they were drafted in direct response to the antics of the Phelps clan. While these laws are not directly at issue here, the result of this case will likely serve as a preview for their fate, as well.

The Supreme Court has already examined when the First Amendment can be a defense when sued for intentional infliction of emotional distress, when the “distressing” conduct is entirely verbal, and involves the expression of an opinion. The question involves the balancing of the right to free speech against, among other things, basic human decency.

In general, when the victim of speech-based emotional distress is a public figure, and/or the speech concerns a matter of public interest, it is very difficult for them to succeed in a lawsuit for IIED. This is because courts generally assume that public figures or matters of public concern are going to be discussed, and it’s essential to allow free and open discussion of these issues. There is no requirement that discussion of these issues has to be civilized, that expressing one’s views has to be done in a tactful manner, or that the views being expressed have any merit.

In this case, like it or not, the Phelps clan is commenting on a matter of public concern (the wars in Iraq and Afghanistan), as well as expressing their religious views.

Furthermore, these funerals were paid for with public funds, the protestors are several hundred yards away, on public rights of way. And, finally, they don’t appear to physically interfere with the funerals.

With all of this said, it’s hard to argue that their speech is not constitutionally protected. And if called upon to do so, I would (perhaps grudgingly) defend their right to express their views. The fact is that censorship, in any form, almost never stops at speech which most people would be happy to see go. And I’ll be honest, if the Supreme Court were to hold that the conduct of the Phelps clan is not constitutionally protected, I would not shed a tear for them. But it would be cause for worry about the long term implications of such a decision.

So, what can be done about this? Certainly, almost nobody is happy that the Phelps family is engaging in this despicable conduct. Without resorting to legal recourse, what can be done to stop them?

Well, maybe nothing. But when it comes to free speech, that’s just how it’s supposed to be. Clearly, appealing to their basic sense of decency and compassion hasn’t worked – they have none. Trying to argue against their views is pointless – they believe them so dogmatically, with such ignorance of the facts, that they won’t be persuaded by logic, either.

Perhaps the best way to silence them is to drown them out with opposing voices. Free speech is a two-way street, after all. In some instances, protestors have simply located a counter-protest between the Westboro crazies and the funeral, at least partially obscuring the family’s view of them. Counter-protests showing solidarity with the families of the fallen soldiers, reminding them that the hateful people picketing on the side of the road are a tiny, tiny minority.