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Why we protect despicable speech

Sara Phelps holds signs during a protest in Shumway, Ill., by followers of the Rev. Fred Phelps, who claims soldiers have died because they fought for a country that condones homosexuality.

Associated Press (2006)

Sara Phelps holds signs during a protest in Shumway, Ill., by followers of the Rev. Fred Phelps, who claims soldiers have died because they fought for a country that condones homosexuality.

When it comes to free speech, nutty reverends can sometimes make good law.

At least that is the hope now that the U.S. Supreme Court has taken a case for next term involving the Rev. Fred Phelps, the unhinged Bible-thumper who shows up at funerals for troops killed in Iraq and Afghanistan claiming the deaths are God's vengeance on the United States for its acceptance of homosexuals.

No matter how outrageous or offensive, Phelps' speech must be found to be protected by the First Amendment. Otherwise controversial and challenging speech that affronts large majorities will lose its constitutional umbrella.

The Supreme Court just embraced First Amendment rights for corporations engaged in campaign speech. With such an expansive view of free speech, I have to believe that the court will also stand for the rights of people to spout abhorrent views at sensitive times.

Phelps and his followers from the Topeka, Kan., Westboro Baptist Church went to the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq in 2006. Outside the church service in Maryland they held signs reading "Thank God for dead soldiers," "Fag troops" and "God Hates the USA."

Not a group you'd have over for dinner.

Yet during the protest Phelps followed all police directions and local ordinances. In fact, Matthew's father, Albert Snyder, didn't actually see any of Phelps' signs until he watched the footage on television.

Later, Phelps' church also published an "epic" on its Web site titled "The Burden of Marine Lance Cpl. Matthew Snyder" that claimed that Snyder was taught to "defy his creator" and that his parents had "raised him for the devil." Albert Snyder saw the disturbing material after Googling Matthew's name.

Snyder sued for intentional infliction of emotional distress and won a $5 million judgment, including millions in punitive damages against Phelps.

But the judgment was set aside by a federal appellate court last year. The upshot of the ruling by the 4th U.S. Circuit Court of Appeals was that the First Amendment protects distasteful speech on matters of public concern such as homosexuality, the military and religion. Even if Matthew Snyder was mentioned personally in the "epic," it was part of the group's larger social protest. With the use of hyperbolic language, the writing was not likely to be taken by readers as asserting actual facts about Snyder, the court found.

Subjecting Phelps' views on Snyder and other soldiers to million-dollar liabilities for emotional distress is a slippery slope. Remember the accusations made by the late Rev. Jerry Falwell against ACLU members and other liberals in the aftermath of the 9/11 attacks? His claims were not much different from Phelps'.

Referring to God's anger toward America, Falwell said on Pat Robertson's The 700 Club: "I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way — all of them who have tried to secularize America — I point the finger in their face and say, 'You helped this happen.' "

Robertson readily agreed.

And Robertson recently added to the emotional distress of Haitian earthquake victims by claiming they are cursed due to a pact they made with the devil for independence from the French.

Nutty reverends saying hateful things. Nothing new about that. It's ugly but not actionable. Free expression needs "breathing space" as the Supreme Court has said, to protect the exchange of ideas.

Falwell himself was reminded of this when he sued Hustler magazine for a fictional piece describing him having sex with his mother. Falwell wanted money damages for emotional distress. He lost before a unanimous court — a very good day for free speech. Had it gone the other way, Falwell's own noxious sputterings could have exposed him to civil liability.

In the Phelps case, either the court will silence him or let his views sink of their own ignorance. From the rantings of this nutty reverend, the breadth of free speech for every one of us hangs in the balance.

Why we protect despicable speech 03/20/10 [Last modified: Friday, March 19, 2010 3:43pm]

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