The limits of free speech in a civil society

By Phil Lawler ( bio - articles - email ) | Oct 08, 2010

This week the US Supreme Court heard oral arguments in the case of Snyder v. Phelps, which has been generally described by analysts as a case testing the limits of freedom of speech. With my apologies to legal scholars, I think the case tests something else entirely: our nation’s civility.

A Wall Street Journal analysis provided an admirably succinct summary of the facts:

In Snyder v. Phelps, the question involves Pastor Fred Phelps and seven protesters from the Kansas-based Westboro Baptist Church, who picketed outside the 2006 Maryland funeral of Matthew Snyder, a U.S. Marine who was killed fighting in Iraq. As the family grieved, the protesters waved signs saying "Thank God for Dead Soldiers," "God Hates Fags" and "Don't Pray for the USA." Church members believe that American deaths overseas are God's vengeance for our immorality, including the country's tolerance for gays.

Matthew's father, Albert Snyder, sued for emotional distress and a jury awarded him $2.9 million of compensatory damages and $8 million in punitive damages. That verdict was overturned by the Fourth Circuit Court of Appeals. The Supreme Court will now determine whether such speech can be regulated and whether the law permits tort liability for hurtful speech.

During oral arguments, the justices of the Supreme Court made no attempt to conceal their disgust with the tactics used by the Westboro Church members. Every pundit who has approached the topic—I know of no exceptions—has also condemned their reprehensible approach. But loathing someone’s ideas is one thing; making it illegal to voice those ideas is something quite different. The question before the Supreme Court is whether it is possible to punish the Westboro Church crowd for expressing odious views, without infringing on their constitutional right to freedom of expression. From a legal perspective, it’s a difficult case indeed.

Yes, the views of the Westboro Church are loathsome. We would all be happier if such views were not expressed in public. But freedom of speech, as guaranteed by the First Amendment to the US Constitution, protects expression of even the most unpopular ideas. (After all, there is no need to provide legal protection for people who say things that everyone wants to hear.) If the government can prohibit the expression of some views, because they are judged too abhorrent to qualify for constitutional protection, where does one draw the line? What would stop the government from gradually censoring more and more ideas, until freedom of speech became a hollow concept?

Those were the questions raised in the Supreme Court arguments and in thousands of editorial commentaries. Again, I respectfully suggest that they are the wrong questions.

Justice Ruth Bader Ginsburg seemed to hint that the free-speech rights of the Westboro Church might be weighed against the privacy rights of the aggrieved Snyder family. But that line of argumentation is suspect. The Constitution never mentions a “right to privacy;” that right was concocted by liberal jurists, who cited the “emanations from penumbra” of the Constitution, as part of the inventive approach that eventually led to the Roe v. Wade decision and other legal atrocities.

On the other hand, Justice Ginsburg was quite right to point out that it is difficult to justify a legal finding against the Westboro Church activists if they did nothing illegal. If their protests violated no local ordinances, it will be difficult for courts to justify a legal finding against them. The Snyders based their own legal case on a claim that the Westboro Church demonstrations had caused “emotional distress” for the grieving family. Undoubtedly it had. But while it is terribly uncharitable to cause emotional distress for a family that is already suffering, it is not necessarily against the law. Once again the Supreme Court was confronted with a challenge: to find a basis for declaring that the Westboro Church is liable for the grief of the Snyders, without opening the floodgates to lawsuits by anyone who claims that a neighbor’s public statements have caused him some “emotional distress.”

One final complication: The most despicable thing done by the Westboro Church in this case was demonstrating at a funeral. But the demonstration was not directly in front of the church. So the demonstration did not violate the law by disrupting a church service. Indeed members of the Snyder family admitted that they could barely see the protestors’ odious signs. Still they knew that the Westboro Church was there, because they had been the target of a relentless campaign of invective on the Westboro web site, and a stream of public statements by Westboro representatives.

What can we make of this ugly case? I am not a lawyer, and do not pretend to any expertise on the constitutional issues involved. But from my lay perspective several points seem clear.

First, this is not a freedom-of-speech case. No one denies the right of the Westboro Church members to express their ideas—however vile, however outlandish, however un-Christian. They can express their opinions freely in their own church, or in any other public forum that they find available. The question is not whether they are entitled to express their odious views, but whether they are entitled to express those views on a public sidewalk during a funeral. If local laws do not give police the authority to regulate such demonstrations for the sake of public decency, then local laws can and should be amended.

(The lawyer for the Westboro Church—herself a member of the group, and daughter of the fundamentalist pastor— argued that a public demonstration was appropriate because the funeral was a public event. But she supported that argument with the transparently flimsy evidence that the funeral arrangements were announced in a local newspaper. By that standard, every funeral is public and no family is protected.)

Second, the Westboro Church was deliberately planning to cause emotional distress. Their protest was not attempting to make a rational argument, but to provoke a visceral reaction. The First Amendment to the US Constitution was drafted to protect unpopular political opinions, not to provide a license for personal insults. Yet it is abundantly clear that the point of the Westboro demonstration was to insult the Snyder family—and, by extension, all Americans who honor military service and/or respect a family’s wish to bury a loved one in peace.

In the 1942 case Chaplinsky v. New Hampshire, the Supreme Court ruled:

Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

Third, the outrageous claims made by the Westboro Church had entirely predictable consequences. The demonstrators wanted to make people angry, and they did.

Justice Ginsburg asked how the Westboro Church could be held liable for its behavior, if that behavior was legal. The law does provide an answer. It is perfectly legal for me to swing my fist, but if my fist encounters your chin—and that encounter was predictable–then I am liable for the consequences. Similarly, if I say something calculated to enrage you, and you are duly enraged, I can be held accountable. The Supreme Court made this point, too, in the the 1942 case Chaplinsky decision:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

What is remarkable in this case is that although the Westboro Church members clearly used “fighting words,” there was no fight. I am not suggesting that the Snyder family should have assaulted the Westboro demonstrators; they were busy, mourning their son. I am suggesting that their neighbors should have taken whatever steps were necessary—within the law, of course-- to spare the Snyders from the impact of this ugly demonstration.

Fourth, the Westboro Church has an odd ally. Why do these despicable people keep showing up in public places, peddling their peculiar brand of hate? Because they get so much attention from the mass media. And why do the media give them so much coverage? Because the Westboro Church provides the media with a convenient caricature. These fundamentalist demonstrators fulfill the liberal stereotype, claiming to be Christians but acting in ways that produce only hatred, anger, and division.

The Westboro Church is a disgrace to the claims of Christianity. That’s why the Westboro Church—a tiny, isolated, fanatical sect, composed of one extended family-- draws such disproportionate attention from the mainstream American media.