The 1st Amendment, Hate and Fred Phelps' Westboro Baptist Church

"Pray for more dead soldiers." "Semper fi fags." "Thank God for dead soldiers."

God Sent the Fires

By now, you probably recognize some of those hateful messages from Fred Phelps and his Westboro Baptist Church. In 2006, Phelps and his followers displayed those lovely signs and more while picketing the funeral of fallen Marine Matthew Snyder. Yesterday, ruling on the lawsuit against Phelps and his church filed in response, the Supreme Court upheld the church's right to protest in an 8-1 decision.

Last year, after an earlier ruling came down from the Fourth Circuit Court of Appeals on this case, I had quite a few questions from friends about how our courts could allow something so horrible. This was my response, modified quite a bit to reflect the Supremes ruling yesterday.

The Question:

On Facebook, my MilFam friend Carrie asked a question about the Phelps case:

Now maybe you know but does the constitution protect people's right to protest ANYWHERE they want, or just their right to protest?


Fred Phelps is that fabulous guy from the Westboro Baptist Church who claims to be a "Christian" and travels the country with Hallmark Hall of Fame placards with such lovely quotes as "God Hates Fags," "You're Going to Hell," "Thank God for Dead Soldiers," and my personal favorite, "Semper fi fags."  Classy guy, I know.

Mr. Phelps and his misguided followers decided to protest, along with their lovely signs, at the funeral of Lance Corporal Matthew Snyder, who was killed in action in Iraq in 2006.  His family was understandably displeased.  Al Snyder, Matthew's father, sued Westboro Baptist Church, Mr. Phelps and several members of his family/church (the "Defendants") in federal court in Maryland. He argued that the members of the Westboro church invaded his privacy and caused intentional infliction of emotional distress.  Mr. Snyder won almost $11 million at trial.  (This was later reduced to $5 million by the district court.)

Phelps appealed and the Fourth Circuit Court of Appeals reversed the decision of the trial court in September of 2009.  No, Phelps was not represented by the ACLU, but they did file an amicus (friend of the court) brief in support of Phelps, et al.

The Supreme Court, in a ruling issued yesterday, affirmed the Fourth Circuit, holding that the First Amendment shields the Westboro Chuch and Fred Phelps from tort liability.

The Fourth Circuit summed up the two sides quite nicely in their opinion:

Defendants’ rationale was quite simple. They traveled to Matthew Snyder’s funeral in order to publicize their message of God’s hatred of America for its tolerance of homosexuality. In Plaintiff’s eyes, Defendants turned the funeral for his son into a "media circus for their benefit."

The Defendants complied with local ordinances and police directions regarding staying a certain distance from the church.  Mr. Snyder did not see the signs until he later saw a news broadcast with footage of the Phelps family at the Church.

Congress shall make no law...abridging the freedom of speech.

Let's start with something we should all recognize from the Bill of Rights, the First Amendment to the Constitution.  It states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(The First Amendment also applies at the state and local level through the Fourteenth Amendment, in case you were wondering.) 

Not all speech is protected by the First Amendment.  It's a balancing act.  Speech that causes physical harm isn't OK.  You also won't be protected by the First Amendment if you decide to say something about an individual that is factually wrong.  (You can't erect a sign in front of your house that says your neighbor is a pedophile unless he actually is.)  However, just because speech is hateful or offensive does not mean that it can be suppressed.  The government can place reasonable "time, place and manner" restrictions on speech but the restrictions have to be narrowly tailored and balance the interests, and rights, of everyone involved.

Here, Mr. Snyder's tort awards could only be upheld if the award was consistent with the Defendants' First Amendment guarantees. Speech, even if hateful and offensive, can still be protected speech if it isn't physically harmful or disruptive and it doesn't involve false statements about an individual.

(This is a gross oversimplification of the law here, but I'm trying to spare you the minutiae of the law regarding general speech versus speech clearly directed at an individual. Let's just say there was some debate over whether the signs carried by the Westboro Church and Phelps were public or private speech and whether they were general statements of opinion, such as "God hates America," or specific factual statements aimed at the Phelps family such as "You're going to hell.")

The Fourth Circuit and the Supreme Court held that the church's speech was protected by the First Amendment. They just got to that decision for slightly different reasons.

The Fourth Circuit ruled in Westboro's favor because the signs the church members carried were obviously not provable facts about an individual, rather they “clearly contain[ed] imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants [were] concerned." In other words, because Westboro's signs weren't like the front yard sign about your neighbor's pedophilia, something that can be proved or disproved, they were considered "hyperbolic rhetoric" protected by the First Amendment.

The Supreme Court got a little more down and dirty, holding that the picketing was entitled to First Amendment protection because the signs, while deplorable, contained messages about broad issues of public concern. The Court noted,

“While these messages may fall short of refined social or political commentary, 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.”

The signs were also displayed on public land, next to a public street (an area of special First Amendment protection), well away from the funeral itself, and there was no indication that the signs were directed at the Snyder family. Rather, Phelps and his unholy band of merry men and women had been displaying similar signs at public events and locations for years.

Even speech protected by the First Amendment isn't allowed everywhere. The state can place reasonable “time, place and manner” restrictions on speech. But in this case, Maryland didn't have a law against picketing funerals at the time. (Although it does now.) Westboro alerted the authorities ahead of time and fully complied with police instructions while picketing. They did not attempt to disrupt the funeral.

The Supremes noted that if a similar group had been in the same location at the same time, holding signs that read “God Bless America” or “God Loves You,” there would have been no objections. The objection was simply to the message Westboro's signs conveyed. Because Westboro's speech was at a public place on a matter of public concern, the speech is entitled to special protection under the First Amendment.

The Supreme Court closed with this:

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.

The First Amendment may protect some pretty nasty people and some horribly hateful words, but we have to hold our noses and uphold the Bill of Rights.

My Two Cents

What about Carrie's question?  Does the Constitution allow people to protest wherever they want?

The answer is no, it doesn't.  Remember, the government can place "reasonable time, place and manner" restrictions on speech.  Many states have passed laws regarding protests at funerals and Congress has placed some restrictions on protests at funerals on federal property.  

In fact, Maryland, where Matthew Snyder's funeral was held, has a restriction on protests at funerals in place now.  The Maryland law provides one of the most generous buffer zones in the country, requiring that protesters stay 1000 feet away from a funeral.  The Maryland law wasn't in place when the Westboro church protested Matthew Snyder's funeral, but Phelps and his followers were complying with the local ordinances and state police when they protested at Matthew Snyder's funeral. 

So, as hateful as Mr. Phelps and the members of the Westboro Baptist Church are, they do have the right to peaceably assemble and spread their message of hate.  Like the skinheads and the KKK before them, Phelps is engaging in an activity protected by the First Amendment.

We don't have to like it.  In fact, I must add that I wouldn't be at all disappointed if Mr. Phelps was struck by a meteor falling from the sky.  Or if he encountered 3 huge Marines in a dark alley while holding his "Semper fi fags" sign.  But the Bill of Rights that allows me to stand outside my Congressman's office with a sign telling him what I think about health care reform, also applies to people like Fred Phelps in public locations.

We can only hope Phelps understands the significance of the Constitutional protections he invokes to promote his hateful speech; the Constitution that Lance Corporal Snyder and his comrades in arms have sworn to protect and defend with their lives. 

If there is a God, Mr. Phelps, she is watching you.

Stephanie also blogs about non-legal stuff at Lawyer Mama and acts as the Communications Director for Blue Star Families, a nonprofit dedicated to supporting military families. The views she expresses here are hers and hers alone.

Photo Credit: k763 | Original for BlogHer

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