Constitutional Law, Politics, Society, Supreme Court

Supreme Court Rules In Favor of Westboro Church

In an important reaffirmation of the free speech, the Supreme Court has ruled 8-1 in favor of the Westboro Baptist Church. Westboro is infamous for its deranged, homophobic protests at funerals of fallen U.S. troops. In an opinion by Chief Justice John Roberts, the Court refused to allow the universal disgust at Westboro’s views influence its decision. Only Justice Samuel Alito was willing to radically curtail free speech to punish Westboro.

The father of a fallen Marine sued the small church under claims of harassment and an intentional infliction of emotional distress. I have previously written that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column.

Roberts held that the distasteful message cannot influence the message: “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.” Roberts further noted that “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. 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 Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the first amendment. In this case, the Court continues that line of cases — rejecting the highly subjective approach espoused by Alito in his dissent:

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

Justice Samuel Alito again gave little credence to concerns over the constitutional rights raised in the case. He insisted that “[i]n order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.” Alito did not care that the protest was part of the bizarre religious and political beliefs of the Respondents:

Respondents’ motivation—“to increase publicity for its views,” ibid.—did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack.

It is precisely the type of extreme analysis that led some of us to object to Alito’s confirmation. (For a prior column, click here) Alito does not show how we will distinguish between types of speech that he finds brutal and acceptable. It is precisely the type of slippery slope of analysis that we sought to avoid. Alito offers little compelling analysis in erasing the bright line protecting free speech. Indeed, his conclusion appears driven more by anger than analysis. His approach comes close to a content-based approach that would deny free speech protection to those who are most in need of it. We do not need the first amendment to protect popular speech. It is there to protect those who speak against the majority — those viewed as brutal and obnoxious by people like Alito.

Here is the opinion: 09-751

Jonathan Turley

95 thoughts on “Supreme Court Rules In Favor of Westboro Church”

  1. So tell me again how it is constitutional or legal that we have ‘free speech zones’ in this country? why isnt our message of dissent allowed anywhere near certain political rally’s and such? would it be legal to put westboro behind a chain link fence and let them have their ‘free speech’?

  2. I just want to know how Ray McGovern can be arrested for his Free Speech at the State Department and the Westboro cabal gets a free pass? I agree that this was the correct decision, but let’s be consistent. Let’s rescind any and all free speech zones and stop arresting protestors in order to control dissent.

  3. First: the necessary disclaimer. I hate these Westboro people. If they all died tomorrow, I would take the day off and throw a party.

    Second: With one exception, the Court got it right. And I am frankly stunned that Alito, as vile as I find him to be, and as bad as I knew he would be, would toss any and all pretenses to caring about constitutional concerns and come up with the ruling he did. I honestly am flabbergasted. This is as open and shut as case as the Supreme Court ever gets, the ruling is as inevitable as the sunrise, and yet he pulls that sorry-assed excuse for a dissent out of thin air and indulges in what must truly be the worst case of judicial activism I’ve ever witnessed.

  4. OS:

    A lot of post lately have left me asking “whats going on”,now with this decision ““one could be harassed by this group and there,s nothing you can do about it ?”

    I’ll have another question to ask.

  5. Gingerbaker,

    The key word in your statement is “marketplace”. One counters bad ideas by with either deconstruction or better ideas. The negative value of said bad ideas is thus either neutralized or displaced.

  6. Gingerbaker:

    Surely, there ARE ideas and philosophies which promote no societal good, and their continued repetition has no redeeming value, nor the chance for any improvement in their probative value.

    That is what the Free Exercise Clause covers.

  7. eniobob, not sure what you refer to. I have to leave and will check back later.

  8. ackbark, this does not really have anything at all to do with religion. It has to do with a bunch of sociopaths whose con it is to be so provocative or outrageous that they provoke a response. Then they run down to the courthouse and file a lawsuit for whatever seems to work. That is how they make most of their money.

    Recently, we had a member of the Air Force killed who was from this area. The Westboro crowd announced they were going to picket, and a local reporter said they had been spotted in the nearest city. However, the funeral was to be held in a rural east Tennessee county. Now, this is hill country where there are probably three to six guns for every man, woman and child. And the local hunters are so skilled they could compete with Marine snipers. In fact, I know two who really are former Marine snipers. If something bad happened to one or more of the Westboro trolls, I am convinced there would be no one who would admit to seeing anything. After scoping out the landscape, the Westboro crowd never put in an appearance. This is also about cowardice, rather than true belief in their cause.

  9. OS:

    Now there is two:

    “what is going on”

    “one could be harassed by this group and there,s nothing you can do about it ?”

  10. I want to ask,

    as a funeral is an inherently religious service, how is this not one religion trying to impose itself on another religion?

  15. eniobob, your (or my) car may drop a steering link and grease it’s undersides with the lard between Fred Phelps’ head…
    just sayin’

  16. Wow,being at a loss for words not only here but across the country.
    Wheter people agree or not its a situation that can effect anyone of us personally.

    Whats to stop this group from looking at a local towns obiturary and decide to picket someones funeral and might be some one that you may know and you and your loved one could be harassed by this group and there,s nothing you can do about it ?

    Gingerbaker
    TOUCHE!!

  18. We don’t really have a tradition of vigorously protecting all free speech in this country. There are plenty of instances where speech can be limited in time and place, for example, often for as little reason as ‘protecting’ the delicate sensitivities of minors from happening onto material their blue-nosed parents find prurient. Material, btw, which evidently does no harm to, say, European kids. Free speech is limited for other reasons as well, including commercial speech, speech of government employees, even seditious speech these days.

    America, in fact, is quite exceptional in its dedication to supposed free speech absolutism. We just allowed corporations to ‘buy’ influence over our political system in the name of ‘free’ speech.

    For decades now, many countries around the world have been experimenting with variously-broad restrictions of dangerous speech, speech whose “contribution to public discourse may be negligible.” Example – Germany outlawed public speech advancing Nazism. Other examples include various restrictions on hate speech. Their societies are not coming apart at the seams. Far from it, compared to the U.S. That is not to say that there have been no problems with over-broad interpretations of these laws, but they are generally quite rare, and the systems are adjusting, and over all, I think it is fair to say that that the European approach is a successful alternative to the American philosophy.

    Our free speech philosophy is based on the idea that all speech, no matter how vile, has a role in the marketplace of ideas. But is this not blind absolutism? Surely, there ARE ideas and philosophies which promote no societal good, and their continued repetition has no redeeming value, nor the chance for any improvement in their probative value. Holocaust denial, for example.

    Yet, these few types of hateful speech have negative consequences for society, and inflict great pain on individuals. Why, in a society that deems a naked breast on prime-time TV so dangerous it warrants censorship, should insipid hateful speech like the Westboro bunch inflicts not be similarly off-limits?

    Europe has demonstrated conclusively, that carefully targeted restrictions on hate speech do NOT inexorably take a society down a slippery slope. As can be said for the myriad of speech restrictions already on the books here in the U.S. I don’t think Alito is necessarily off-base in his his views, indeed, they are embraced by the rest of the Western world.

  19. I just wish that they had taken judicial notice of what a pathetic and vile example of the exercise of free speech is demonstrated by the Westboro Church’s actions…

  20. This is a strong and welcome affirmation of the First Amendment, and it will be interesting to see how this will be played in the media.

    Looking at headlines so far: “Supreme Court Rules in Favor of Anti-Gay Church”, “Supreme Court: OK to Harass Dead Soldiers”, “Hate Protests are Protected Speech”

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