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
I also don’t understand how my injury can be somebody else’s protected speech.
What if they were picketing grade schools?
OS,
Great video!
Otteray Scribe
that’s the kind of media attention they deserve
Jackie and Dunlap from Red State Update visit the Westboro protesters. This is the way to handle trolls of all variety.
[youtube http://www.youtube.com/watch?v=mHQjY0MwLxY&fs=1&hl=en_US&rel=0%5D
Mespo,
I think a free speech zone about two blocks away should keep these idiots out of harms way. I hope they don’t picket at some fallen Marine’s service with his buddies in attendance. That could be dangerous for the Westboro haters.
pete,
I think the Westboro gang would welcome a protest in front of their church. Those folks are just a bunch of publicity seekers.
if you don’t like what the westboro church does then get some friends, make some signs and go protest in front of their church.
i imagine it would be hard to hold a service or whatever it is they do while people with bullhorns are outside their doors.
Last week there was an article titled “is speech really free.” In that article the issue discussed was whether people should be permitted to disrupt political speeches and if not, what the consequences should be (e.g. don’t tase me bro).
For argument’s sake, suppose the Westboro protesters had actually disrupted the funeral. What measures should authorities be permitted to use to stifle their protests, if any? Is it more important to protect funeral mourners or politicians in the process of campaigning?
I am a rabid proponent of free speech–the more the better.
Yet, we do punish some speech–for example slander.
Thomas Jefferson said (during the controversy of the Alien and Sedition Act) that it was never believed that the states could not regulate speech in some manner or that even cults (or false religions) could not be acted against by the states Both issues are first amendment concepts. We even allow that some people should not have guns (psychopaths or felons, for example. This can only be done on the state and local level though, as any federal action is unconstitutional.
What Jefferson was saying was the states had power to limit speech and false religions but the federal government may NEVER do so.
The real meaning of this case is whether or not the “church” members violated local or state laws. The federal government and constitution is silent about speech otherwise.
Whereas state and local governments may limit speech in the case above. I’d be for a local or state law that forbade protesting funerals or services at cemeteries. This is a no brainer.
Alito is correct for the wrong reason. And everyone else appears to be incorrect for the right reason.
We make these mistakes because we fail to take the whole Constitution into view, including who is being spoken to and the limitations of the agents. And we ignore, to our peril, the 10th Amendment.
The Federal Congress shall not infringed. The states may. In this case, as far as I know, congress did not. Whether the states did infringe on its own laws, I don’t know. But that issue would be the key to this case and the only reason for it to appear before the high court.
James M:
Westboro admitted that the plaintiff, the grief stricken father of the fallen soldier, suffered irreparable and unhealable harm from the ghoulish display. Calling a dead soldier a fag, hated by god, a devil, and an adulterer in the presence of his family, freinds, and loved ones doesn’t strike me as “matters of public concern.” That’s decidedly private speech and undoubtedly as vile as it gets. That this Court protects it at the expense of the admitted harm inflicted by it, suggests an Al Pacino scene of some repute (try about 8:27:
mespo:
I think we’re on the same wave length:
“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 ?”
If I were placed in that situation there would not be a turn the other cheek moment.
mespo,
“You can take great solace from the fact that after today’s ruling you may lawfully utter these words in West Virginia free from any state recourse to limit your speech. Some call that progress.”
Great – I can shout it from the rooftops!
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Elaine,
If I’m not mistaken, they protest on public property not in the immediate area of the church, but close enough to make their presence known.
There’s a group of bikers called Patriot Guard Riders that go to military funerals and shield the mourners from the freak shows.
Elaine M.,
The Court emphasized that the protest was 1000+ feet away, on public property and that the mourners could only see the tops of the signs — not what the signs said. (The plaintiff only found out after watching the news that night.) The protesters were also relatively quiet and reportedly didn’t disrupt the funeral at all.
Elaine M:
“A funeral is a private occasion. Shouldn’t the family and friends of the deceased have the right of privacy and be to pay their respects and mourn for their loved one without having religious fanatics intruding on their time of sorrow?”
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Precisely. I always thought your rights to flail your arms stopped at my nose. Apprently the Roberts Court sees no need to protect the most vulnerable from the most vile.
This is about free speech like Hooters is about haute cuisine.
A funeral is a private occasion. Shouldn’t the family and friends of the deceased have the right of privacy and be to pay their respects and mourn for their loved one without having religious fanatics intruding on their time of sorrow?
BIL:
If the Westboro gang comes to my funeral I have left explicit instructions in my Will to have my overwhelmingly Italian American mourners to bring lots of violin cases, limosines, and maps to swamps in New Jersey. I think my folks can handle it from there. Viva free speech, Rev. Phelps. When I meet you on the other side maybe you can tell me if one can really holler epithets under brackish water?
SL:
“Considering that the “church” has only about 30 followers, most of which are members of the Phelps family, I’d say there’s going to be a significant increase in inbreeding so they can quadruple the number of funerals they protest …”
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You can take great solace from the fact that after today’s ruling you may lawfully utter these words in West Virginia free from any state recourse to limit your speech. Some call that progress.
Despite still thinking that the best way to fight a bad idea is deconstruction or displacement, as a matter of civil order, I do have to agree with mespo.
Elaine M,
Considering that the “church” has only about 30 followers, most of which are members of the Phelps family, I’d say there’s going to be a significant increase in inbreeding so they can quadruple the number of funerals they protest …