The Supreme Court ruling on Snyder v. Phelps was issued this morning– 8-1 in favor of Phelps, saying that the First Amendment protected the WBC’s right to protest the military funeral. I couldn’t have imagined it going any other way, but there was still a niggling worry that it might. The opinion, authored by Roberts with Breyer concurring, notes that the protest was taking place on public land, roughly a thousand feet from the church (as instructed by police), and none of the protesters entered the cemetery. None of them interfered in the funeral in any way, and the plaintiff was not even able to read what their signs read until that evening when he saw them on a news broadcast. The lone dissenter to the opinion, Justice Alito, disagreed mainly on the grounds that the protest took place at a time and location geared to garner maximal attention. Which…isn’t that what protesters always do?
I’m very glad that this case went to the Supreme Court, and that this was the decision they delivered. That doesn’t mean I have a shred of sympathy for Westboro or their supposed cause, but I do think that delivering a $5 million dollar judgment against a group protesting on public grounds without any violence or even cursing would set a very, very bad precedent in terms of freedom of speech. From the opinion:
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 underlying 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 sometimes 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 chose to say 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.
Their conclusion:
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. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech. 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. That choice requires that we shield Westboro from tort liability for its picketing in this case.
ETA: Fred Phelps’ estranged son Nate, an LGBT activist who lives in Canada, does not support the decision. I find that disappointing but not surprising.