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 concerns 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.”
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.
As 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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