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 understand the legal principle but am mystified as usual at the motives of the church, who use the public forum for attention in a vile way, like the march in Skokie years ago. Aren’t there better ways to inform of one’s presence in a positive way that might actually get somebody to send funds to pay their website bill, or are they all self-destructive to the point that they’re just considered to be wacko? Are there tax advantages that are better than just being tax exempt?
No – ““I am going to come to your house in the middle of the night and murder your whole family.” is criminal assault.
On a public sidewalk, A tells B: “I am going to come to your house in the middle of the night and murder your whole family. Also, I disagree with you about the marginal tax rate.”
Question: is A’s speech immune from any criminal or civil consequences?
The Supreme Court just answered “yes.” That’s appalling, and has no connection whatsoever to preservation of the public discourse.
rafflaw:
“I think a free speech zone about two blocks away should keep these idiots out of harms way.”
*****************
Right you are! You have a right to speak — not to be heard.
Reformation?:
The seminal (and largely sympathetic) work is “The Twentieth Century Encyclopedia of Catholicism” by Henri Daniel-Rops, a french author. A shorter work by an equally sympathetic author is “The Catholic Church Through the Ages: A History,” by John Vidmar.
A less flattering interpretation comes from Henry Charles Lea, “A History of the Inquisition in the Middle Ages,” 3 Vols. 1988.
Hope this gets you started.
rcampbell:
“But, but, Ginger, you of all people!! What about rock ‘n’ roll?
Rock and roll will never die. 😀
http://laughingsquid.com/san-franciscos-answer-to-westboro-baptist-church/
http://laughingsquid.com/absurd-sign-generator-lets-the-whole-family-prank-westboro-baptist-church/
(Putting all the links on one post put me into “moderation purgatory)
http://laughingsquid.com/god-hates-signs-protest-of-the-westboro-baptist-church/
Elaine M,
Thanks for your 8:41 post. Here are some pictures from counterprotests – enjoy!
http://www.fanpop.com/spots/lgbt/articles/48555/title/god-hates-parodies
NO! I argued that speech of that kind and which was also dangerous to society should not be exempt from restriction. I am speaking of a very select few, specific restrictions to add to the mountain of already existing restrictions that basically are prudery.
You go on to list an instance of perceived overstep of the hate speech law. I already conceded that the systems are not perfect yet.
You then went on and played the “There is no human being possibly intelligent or objective enough to trust to set up these rules, it is beyond human capability” card. Which, of course, ignores the fact that we have had restriction of speech for years, that Europe has had hate speech laws for years, and that we put a man on the moon half a century ago. Somehow, I think the human race can come up with a law to prohibit obnoxious political demonstrations for the purpose of disrupting funerals without causing California to slide into the sea, but then again, I’m an optimist.
Tootles,
You are correct about one thing.
You are rabid.
Probably the only time this will ever happen, but in this case I’m with Alito.
This is a 2005 story about the cretins from Westboro protesting at the funeral of Sgt. Christopher Piper, one of my former elementary students.
Protest at Soldier’s Funeral Brings a Massachusetts Town Together
A big turnout and police bagpipes drown out a Kansas group opposed to homosexuality.
http://articles.latimes.com/2005/jun/28/nation/na-funeral28
Excerpt:
The 14 demonstrators from Westboro Baptist Church in Topeka, Kan., picketed Monday on a corner near the Old North Church, a Congregational parish founded in 1635, soon after Marblehead was settled. The followers of the Rev. Fred Phelps, who blame American tolerance of homosexuality for the Sept. 11 attacks and the resulting U.S. military casualties in Iraq and Afghanistan, have targeted Massachusetts for protests because it is the only state where same-sex marriage is legal.
Shirley Phelps-Roper, a lawyer for the Kansas church, said Monday that the funeral demonstration was nothing personal against Piper, who was not gay.
“We are protesting the sins of this nation,” Phelps-Roper said. “That doesn’t exclude him.”
The group also has demonstrated at high school and middle school graduations across Massachusetts, contending that school curricula promote homosexuality.
On the corner of a narrow street lined with Colonial-era buildings, the Kansas contingent tried shouting its anti-homosexual message at mourners who overflowed from the church. But every time demonstrators spoke out, the 14-man Boston Police Department bagpipe band broke into thunderous sound.
*****
You can see a picture of the Westboro cretins picketing during the funeral of Sgt. Christopher Piper at the following link:
http://www.independent.co.uk/news/uk/home-news/coming-to-britain-church-with-a-mission-to-demonise-homosexuals-1624883.html?action=Gallery&ino=7
S/B very own fuhrer
The inevitable collision course of perfect laws meeting imperfect human beings.
Hate speech will be protected until we attain our very one fuhrer and the ensuing holocaust occurs. After all we have a lot more minorities than just Gypsies, Jews and gays to persecute.
Pete
Kill ’em with kindness? Here’s Michael Moore’s answer.
http://readersupportednews.org/opinion2/287-124/3596-how-to-fight-fred-phelps
The video shows Fred “Don’t touch me” Phelps being particularly “Christian”
I need some help. Do any of know of a good scholarly book that analyzes the following:
1. The actions of the RCC during the dark ages.
2. A refutation that Christianity was solely responsible for the the enlightenment and its consequences and secularism was a total failure.
Any help would be welcome. I have an on going argument with a very pious friend.
Thanks for any help you can give.
As I see federalism, if the locals or state have no law against this type of protesting, there was nothing the high court could do but to defend the Westboro people. Had there been a state or local law barring this sort of protest, that would have had to been upheld. Though I would disagree with such a state or local law.
why can’t you take my rights away because these people offend me?
any legal or legislative action you use to stop phelps or westboro baptist will take liberties away from the rest of us.
what to do?
did you see in O.T.’s link where bubba (or whatever his name is) tries asking one of the protesters out? see how annoyed she was getting? according to wikipedia phelp’s grandson was arrested for spitting on someone while picketing. they can be pissed off and pissed off people do stupid things.
if you see them picketing go up and talk to them, get in their way, ask questions about their church, tell them how cute they look (especially if you’re gay or can act like it).
do to them what they do to us, be legally annoying. ignoring them won’t work. they’ll just get bigger signs. don’t yell at them, it just eggs them on. just be nice, get in the way and never give them what they want, especially if they just want to be left alone.