Snyder v. Phelps

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published March 08, 2011

By Author - LawCrossing

03/08/11

The case involved the Westboro Baptist Church, which has managed to take its particularly narrow interpretation of Scripture to new levels of homophobic rage. The church, or more particularly it's minister and his family, has taken to protesting at the funerals of soldiers by waving signs that claim God hates America for our tolerance of homosexuality, and that dead soldiers are evidence of His divine wrath.

Actually, the signs are far more explicit and hate filled, to the point where I'm simply uncomfortable repeating their verbiage.

After Phelps and his family protested at the funeral of their son, the Snyder family sued for, among other things, intentional infliction of emotional distress. Phelps raised a first amendment defense and the case worked its way to the Supreme Court, where Chief Justice Roberts wrote an 8-1 opinion upholding the protests as constitutionally protected speech, with only Justice Alito dissenting.

There is no doubt that the first amendment requires us to accept speech which we may find distasteful, offensive or even hate filled, along with various and sundry immoral or objectionable forms of free speech. For this reason, the doctrine of prior restraint is abhorrent to the Court and to our laws. But this case isn't asking whether Phelps should be allowed to speak his mind, rather it asks whether he ought to be liable for the consequences. To answer that, the Court looked at the difference between speech involving public matters and speech that was strictly confined to private matters. Because Phelps and his family were protesting the policies of the government, the Court found that the speech was about a predominantly public matter and deserving of greater levels of protection.

Over at Concurring Opinions, Danielle Citron raises a cautionary flag. She cites to an example of a white supremacist organization publishing hateful material targeting the mother of a bi-racial child, including what could easily be viewed as implicit threats or calls to others to take violent action, and warns that taken to the extreme the majority opinion could encompass such speech. However Roberts took note of the fact that Phelps' signs were not directed specifically at any one individual or family. Nor did they suggest that either the Phelps or anyone else (other than God) ought to take violent action against individuals. Their protests, although certainly objectionable both in content and context, are directed against the policies of the government and our society's increasing acceptance of homosexuality. The case raised by Citron involves the direct targeting of an individual even if the hatred is spread out over a group. For this reason, it is easily distinguishable from Phelps.
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