Free Speech at the Extreme

Posted March 03, 2011, at 6:57 p.m.

The public outcry over Wednesday’s Supreme Court ruling that a Kansas church’s offensive protests can’t be stopped was as palpable as it was predictable. What also should have been predictable, however, is that the court would side with the Westboro Baptist Church.

The Constitution does not differentiate between speech we like and speech we despise. Trying to make such determinations is exactly what the First Amendment sought to avoid.

“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,” Chief Justice John Roberts wrote in the majority opinion. However, he continued, “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 Westboro church has gained national attention — and ire — for its protests at the funerals of soldiers. Church members carry signs saying “Thank God for dead soldiers” and “God hates fags” even though the soldiers being buried are not gay. Church leader Fred Phelps contends that God is punishing the United States for its tolerance of homosexuality.

Church members protested near the 2006 funeral for Marine Lance Cpl. Matthew Snyder in Maryland. Cpl. Snyder was killed in Iraq.

Cpl. Snyder’s family sued the church alleging invasion of privacy, intentional infliction of emotional distress and civil conspiracy. A jury awarded the family nearly $3 million in compensatory damages, plus $8 million in punitive damages, which were later reduced to $5 million.

A federal appeals court reversed the ruling, agreeing that the church’s First Amendment rights were infringed by the earlier judgment.

The Supreme Court agreed, issuing an 8-1 ruling Wednesday.

Former Maine Attorney General Janet Mills was criticized for making the same point last summer when she declined to join the suit on behalf of the Snyder family. Virginia was the only other state not to file briefs in support of the Snyders.

“The utterances at issue in the Snyders’ claim for damages were offensive and outrageous,” Ms. Mills said last June. “But the First Amendment does not allow us to distinguish between polite speech and hateful or outrageous speech.”

Searsport High School student Zach Parker is championing federal legislation to ban protests at military funerals.

His intentions are noble, but he and his supporters face the difficult task of balancing the rights of grieving families with the First Amendment’s broad protections of speech.

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