Westboro Baptist v. First Amendment

March 2, 2011   by: David Rosman
Columbia, MO –

When should First Amendment rights of free expression be cut off? At what point can we say “No more” as it concernsWe the people... hate speech? It is unfortunate that the United States Supreme Court’s decision did not quite create a definitive limit, but to paraphrase Associate Justice Potter Stewart, I can’t define the limits of hate speech, but I know it when I hear it.

The Westboro Baptist Church has held the upper hand in its 20-years of protesting. Their stance, which is purposely designed to draw attention, is simple, “God hates fags.” Exactly where in the Christian scriptures it says that is a question I will leave to the theologists – at least for now. And how that sentiment relates to United States’ military members killed in the service of their country is, at best, highly questionable.

The Court’s March 2, 2011 decision in Snyder v. Phelps, et al, is a prime example of the problems faced by the Court, legislators and those who are grieving the loss of a loved one and feel emotionally damaged by the presence of the Westboro protesters. Within hours of the decision, voices were rising in support and opposition concerning the Court’s action.

As outside observers, we have a singular difficulty when expressing our various opinions of the Court’s final determination. We do not have immediate and complete access to the “whole record.” Our news services, including this column, provide us with snippets of the story, enough to get the general gist, while at times providing unintentional commentary.

First, some of the facts concerning this case.

Seven members of the Westboro Baptist Church, including the founder Fred Phelps, traveled to Maryland to stage their demonstration at the funeral of Marine Lance Corporal Matthew Snyder. In accordance to Maryland law, the protest was held 1,000 feet from funeral site, the Snyder’s home church. Of course, the highly inflammatory Westboro signs were displayed during the rally.

Snyder’s father filed a law suit claiming “intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.” The original case found in favor of the Snyder family and awarded liable and punitive damages. Westboro appealed the ruling and, as with any case of this magnitude concerning the constitutional “Freedom of Speech” clause, this made its way through the court system to the United States Supreme Court.

The Court held that “the First Amendment shields Westboro from tort liability for its picketing in this case.”

The Court’s decision was based on “whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case… [by] independently [examining] the “ ‘content, form, and context,’ ” of the speech “ ‘as revealed by the whole record.’ ”

The Court found that the messages conveyed by the Westboro protesters concerned “the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving the Catholic clergy.” Whether you agree with the methodology of delivering their message, these issues are real and very public issues, and a regular part of the American conversation. Just because the method, protesting at military funerals, is distasteful, does not change the message.

Because the message is protected speech, no matter how outrageous, the awarding of tort damages is not permitted. In addition to the importance of the message, the members of the funeral were not a “captive audience,” the protest did not interfere with the funeral and the protest was basically out of attendees’ line of sight, so the Court found that the Snyder family could not collect for “intentional infliction of emotional distress.”

Chief Justice John Roberts wrote for the majority:Chief Justice Roberts

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. The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.”

But this does not mean the problems for Westboro are over. On the contrary, if all else fails, to quote Shakespeare’s King Henry VI, “The first thing we do, let’s kill all the lawyers.” An obvious ad hominem and indirect attack, but effective. If you can’t stop the entire entity, get rid of their legal team.

http://www.kscourts.org/rules-procedures-forms/attorney-discipline/default.aspAs the Topeka Capital-Journal reported on February 28, nine retired United States Air Force generals are seeking to do just that, by filing a formal complaint with the Kansas Board for Discipline of Attorneys seeking the disbarment of Westboro’s 10 attorneys, including Fred Phelps’ daughter, Shirley Phelps-Roper. The basis of the complaint is that “the church failed to maintain standards of professional conduct required to hold a law license in Kansas.”

We will have to wait for the Board to make its decision. Yet, even as in this column, the general public will only be privy to a small portion of the information made available to the Courts and boards involved in decision making. This means careful reading and research is required before making an opinion concerning the most important right was are give – that of free expression.

David Rosman is an award winning editor, writer, professional speaker and college instructor in Communication, Ethics, Business and Politics. You can read more of David’s commentaries at ColumbiaMissourian.com and the New York Journal of Books.com.

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About David Rosman

David Rosman is an award winning editor, writer, professional speaker and college instructor in Communications, Ethics, Business and Politics. You can read more of David’s commentaries at ColumbiaMissourian.com, InkandVoice.com and NYJournalofBooks.com.
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One Response to Westboro Baptist v. First Amendment

  1. David, thank you for a balanced report of the issues involved. As disturbing as the Westboro Church group may be, they have the right to demonstrate as they please as long as they cooperate with the limitations placed upon them by Federal, State and Local ordinances.

    Owing to their emotional appeal (meaning their intended angre mongering) one would think it impossible to make them go away. The other day, I was walking down the street with my spouse, and someone shouted an epithet at me from their passing car. The remark was unwarranted, as it was directed at my appearance, and the individual had absolutely no acquaintance with me. Now, I’m not a particularly attractive looking woman, but I don’t need people reminding me of the fact. Given that it was from someone so cowardly to shout from a passing car, I have to consider the source and given that the act was adolescent in nature, from a adult man who will likely never grow-up, it didn’t warrant a response.

    Still, he got my attention, and I did, admittedly, brood about it for a while. These kinds of insults do sting, and I’ve had more than my share of them. This is the very same thing that the Westboro group has created in our national dialogue. They behave like adolescents, shout insults, and grab our attention. And, we brood about it.

    Back in the 1960′ and 70’s Anti-War Movement there was a phrase (stolen to make the title a less than impressive movie), “Suppose they gave a war and nobody came?” Suppose Westboro demonstrated, and nobody noticed?

    I didn’t respond to the guy in the car, because it wasn’t necessary and would only have added fuel to his fire. I could have in the moment before he sped away, but I’m learning to not encourage idiots in their idiocy. He probably laughed at himself all the way to the next intersection, but that was his only reward. Obnoxiousness seems to get a lot of play these days. If we give in to it, we get what we deserve.

    The Westboro Baptist Church is one extended family of clowns. They dress their signs up in clown colours and the behave with all the silliness and stupidity of the circus variety. They are meaningless only until we give them meaning, which we do to our own detriment.

    They want us to get angry, and sadly, they want the apocalypse that they predict without any compassion for all the death and destruction that it will bring, thinking foolishly that the world will be all roses after it ends. That’s the harsh nature of apocalyptic thinking, and those that warn of it often end up bringing it about.

    Don’t get mad at them, just treat them like the foolish adolescents that they are, and ignore their stupidity. Their delusions of grandeur, and their self importance shouldn’t be encouraged, for their own sake, as well as our own.

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