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
Elaine M:
“Westboro Baptist Church Promises To ‘Quadruple’ Down On Protests After Supreme Court Ruling”
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To tolerate a bully is to encourage a bully.
Westboro Baptist Church Promises To ‘Quadruple’ Down On Protests After Supreme Court Ruling
The Huffington Post Nick Wing
http://www.huffingtonpost.com/2011/03/02/westboro-baptist-church-supreme-court_n_830484.html
Excerpt:
A leader of the Westboro Baptist Church told reporters Wednesday that the congregation would “quadruple” the number of funeral protests in the wake of a ruling by the Supreme Court, which found that their controversial demonstrations were protected by the First Amendment, ABC News reports.
Margie J. Phelps, daughter of church leader Fred Phelps and legal counsel for the group, appeared defiant and emboldened by the high court’s decision during an interview Wednesday.
“Let me tell you what this church does: Shut up all that talk about infliction of emotional distress,” she Phelps said, in response to the claim by Albert Snyder, father of slain marine Matthew Snyder, which had provided the impetus for the lawsuit. “When you’re standing there with your young child’s body bits and pieces in a coffin, you’ve been dealt some emotional distress by the Lord your God.”
Sorry I’m not buying here. The First Amendment may have won but civility and the right to privacy in the most vulnerable of moments lost. I think this decision will trigger violent reactions to funeral protestors in the future and will add almost nothing to the free flow of ideas in this Nation. We have a group of persons hell-bent on triggering violence with classic fighting words to persons emotionally disraught. In furtherance of what? This isn’t about the First Amendment but about being deliberately provocative and inciting inevitable violence. If they were hurling racial slurs at an angry mob of Jews or African Americans or anybody, would we be so sanguine? We’re not that far away from that in my judgment.
“Why isn’t this illegal as hate speech?” Because hate speech isn’t illegal; it is protected by the First Amendment. Threats to harm someone, or words intended to provoke a fight, are not protected by the First Amendment, and they may constitute hate speech. But what is punished in such cases is the threat or the attempt to provoke a fight, not the hate that is expressed.
Also, hate speech may serve as evidence that a crime, such as an assault and battery or a murder, was motivated by hate, and such motivation may get the criminal a longer sentence. In such a case, the criminal is, in a sense, being punished for expressing hate, but expressions of hate, by themselves, may not be punished.
Isn’t there a distinction between speech meant to hurt a general group and speech meant to hurt a specific person?
Why isn’t this illegal as hate speech?
“I think the fact that these cases are going to be more rare in the future since so many states have enacted content neutral laws against picketing funerals probably also swayed the court to some degree.” (James M.)
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According to all I have been able to find, 44 states have such laws in place with several more having legislation in the works.
Free speech is messy … there are lawful recourses States may legislate without adversely impacting the principle (not to stifle public debate) of free speech.
In my opinion, the 8 Justices who supported Robert’s words: ” … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” were correct.
Justice Samuel Alito is, in my opinion, an overly emotional twit, whose appointment to the Supreme Court will prove to be an even bigger mistake than Thomas’s.
rafflaw,
Well, regardless, it’s settled law now. I think as a precedent, you’re probably right — someone down the road would have tried to expand my opinion and curtail legitimate speech. (Which doesn’t change the fact that I still think this specific situation should be open to a lawsuit.) I think the fact that these cases are going to be more rare in the future since so many states have enacted content neutral laws against picketing funerals probably also swayed the court to some degree.
James M.,
I understand its design is to hurt people and to be controversial. But it is protected, nonetheless. I think it should be, but we have to have this same kind of unfettered speech rights when anyone is confronting the government.
Gingerbaker:
You argue that the Constitution should not protect the expression of “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.”
But, but, Ginger, you of all people!! What about rock ‘n’ roll?
rafflaw,
This speech isn’t just designed to make news though — it’s designed to make news because of how hurtful it is to the plaintiff.
James M.,
Even if it speech designed to make news, it is still protected. My only problem is the inconsistency in which the ugliest free speech is allowed(correctly so) but protesting against the war or other big issue must be done in a free speech zone or the police or security remove the protestors until after the event,like in Minneapolis/St. Paul during the Republican convention in 2008. It has to be universal or noone really has free speech.
It’s textbook IIED, and it shouldn’t suddenly become protected because Westboro is doing it to get on the news rather than simply to be dicks.
Mike A.,
The content of the speech isn’t the problem, it’s the fact that Westboro specifically targeted plaintiff, who is not a public figure, knowing they would cause severe emotional distress. Westboror did so because because they knew that their conduct would be so outrageous that it would attract media attention.
Gingerbaker,
I’m not saying no other system works. I’m saying merely banning public expression of a bad meme won’t stop the private propagation of that meme. The way to combat private (and public) memes is to combat the bad meme itself.
The person who can give the real perspective on this:
“Bel Aire resident Bob Funcheon says just because it’s legal doesn’t mean it’s right. His son Alex was killed in Iraq in 2007. Westboro protested his son’s funeral. He says thanks to the help of the Patriot Guard, they were not impacted by the protests.
However he says it’s offensive that they chose the platform of a funeral to spread their message. Funcheon says while he respects their right to free speech, he’s against the time and place Westboro chooses to protest.
Today would have been his son’s 25th birthday. He says it’s ironic that Alex died to protect our rights and that includes the outrageous behavior of Westboro Baptist Church.”
http://www.kwch.com/kwch-news-msg-westboro-court-decision,0,6701140.story
Gingerbaker:
You argue that the Constitution should not protect the expression of “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.”
Since when must speech promote societal good to be entitled to protection? What does “societal good” even mean? By what standards should that determination be made? And by whom?
Although you profess that our more enlightened brethren in Europe have successfully drawn the line between tolerable and intolerable speech, I beg to differ. England and the countries of Europe, in their efforts to accommodate the diversification of societies which have been essentially homogeneous for hundreds of years, have been practically falling all over themselves enacting statutes to protect religious and ethnic groups from having their feelings hurt. We have seen plenty of examples of such statutes highlighted on this site. Even as I write this, fashion designer John Galliano (of whom I confess I had never heard until two days ago) faces prosecution in France for making anti-Semitic remarks, including allegedly calling a restaurant patron a “dirty Jew face.” And you do not consider that a slippery slope?
My view is that the necessity for the First Amendment is inversely proportional to the outrageousness of the speech. And I do not wish to entrust that liberty to the discretion of Samuel Alito, a committee of responsible citizens or majority vote.
After reading the opinion, Justice Alito got this one right. Westboro’s speech may have been aimed at the public generally, but their method was calculated to attract media attention because of the outrageous and hurtful nature of the private message they sent to plaintiff and his family. They recklessly inflicted severe emotional distress on the plaintiff in order to get on the news, and plaintiff should be able to recover.
So, the American system works because it works, and no other system works?
The only way to deal with the Westboro bunch desecrating a funeral is to encourage loud dissenters screaming back at them during your loved one’s funeral? That’s a rotten ‘solution’ in a country where Playboy has to be covered in a supermarket, where native Americans are not allowed to use peyote in their private religious ceremonies, and one can not say “fuck” on TV.
We also have a long tradition of time and place restrictions even on political free speech in the U.S. How about one more?
But I would say it does have to do with religion,
the whole thing, Westboro Baptist Church, is organized as an expression of their religion.
They understand the issue and their position on it as expressions of religion and view antagonism to homosexuality as a religious virtue.
It isn’t about the political interest of a group of citizens, it’s about the religious interest of a particular church.
On the other hand, doesn’t this ruling create a precedent to describe all religious interest as political expression?
I don’t understand why an intentional infliction of emotional distress claim couldn’t go forward. So long as there isn’t prior restraint from the government, why can’t this church be held liable for the direct harm their speech creates?
I’ll have to go read the opinion I suppose.