The work of the Rev. Fred Phelps — who organizes antigay, antimilitary protests outside military funerals — is repugnant and dishonors those who gave their lives for this country. But outlawing his antics would unfortunately sacrifice one of America's basic tenets, freedom of speech under the Bill of Rights. The U.S. Supreme Court ultimately must defend Phelps' right to his outrageous behavior on constitutional grounds.
It was a grieving father who filed Snyder vs. Phelps, which the court heard last week. The question before the justices is whether the First Amendment bars lawsuits against people like Phelps who express deeply offensive views on public issues at a uniquely sensitive time.
Marine Lance Cpl. Matthew Snyder was killed in Iraq in 2006. During his funeral in Maryland, Phelps and a handful of members of his Westboro Baptist Church showed up outside the church to picket with signs like "Thank God for Dead Soldiers." At such demonstrations, Phelps generates attention by spouting a virulent antihomosexual credo, regardless of whether the dead soldiers were gay. Phelps claims God is killing American soldiers as punishment for our country's tolerance of homosexuality.
Snyder's father, Albert, didn't see the protest but viewed it on television later. He also read on the church's website that his son was raised "for the devil." Snyder's father sued Phelps and his church for intentional infliction of emotional distress. A jury awarded Albert Snyder nearly $11 million, which a trial judge reduced by half. The appeals court overturned the verdict in 2008 on First Amendment grounds.
Last week, the justices grappled with whether there should be some kind of funeral exception to the First Amendment. Justice Ruth Bader Ginsburg asked why the First Amendment should tolerate this intrusion on a family's grief. But protection for freedom of speech has never been about gauging how a message impacts the listener. If the listener's sensitivities were taken into account, the government would have the ability to silence all categories of speech.
Civil rights marchers once called Southerners racist and antiabortion picketers taunt clinic staff and patients by shouting "murderers." Certainly women seeking abortions could claim that it is a uniquely difficult time in their lives that should not be intruded upon by protesters. But an essential feature of freedom of speech is that even offending viewpoints cannot be censored.
Phelps provocatively goes to military funerals to spread his venom, because that is where he will be noticed and his message heard. It is reminiscent of the American Nazi Party that sought to march in Skokie, Ill., where many Jews lived. Like it or not, these are the kinds of people who end up in court fighting for their rights under the First Amendment. The only good that comes of it is they ultimately affirm broad free speech rights for the rest of us.