High Court Affirms the Right of "Free Speech"

As many of readers already know, I'm not known for my fondness of "fundamentalist" anything when it comes to matters both spiritual and secular. Specifically, I am proud that I despise the actions of the traveling circussinistere performed by Taliban Baptists of Topeka's Westboro Baptist Church under the direction of its Ayatollah and Mullah, Fred Phelps. It will therefore seem strange when I applaud the Supreme Court's decision (8-1, with Justice Alito dissenting) in the case Snyder v. Phelps, a case which reaffirmed the right of the congregants of the Westboro Baptist Church to make an obnoxious public nuisance of themselves by spewing hate speech near the funerals of dead American servicemen and servicewomen.

Now, in response to an oft-repeated request that can be heard in law schools around the world, I will attempt to" ... give us the facts in this case, please."

Members of the Westboro Baptist Church had traveled from their homes in Kansas to Maryland for the expressed purpose of picketing at the funeral of Lance Corporal Matthew Snyder, who had been killed in action in Iraq. The group, carrying signs that read "Thank God for Dead Soldiers," God Hates Fags," and "Priests Rape Boys," picketed " ... on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers ..." Snyder's father " saw the tops of the picketers' signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night ..." (Note 1).

Snyder's father filed a civil lawsuit in a Maryland court alleging "... intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury decided the case in Snyder's favor and ordered that Phelps and Westboro Baptist Church pay several millions of dollars in damages. Phelps and his church appealed the decision, arguing that the damages were "excessive" and that the Constitution's First Amendment protected the church and the protestors from both criminal and civil punishments. After appeals at both the state and federal levels, the case was presented to the Supreme Court, which ruled in favor of the picketers.

Since it was never an allegation that the picketers had broken a state or a federal law the issue, at least to this writer, boiled down to a long-debated point of Constitutional Law: "Is the First Amendment's Freedom of Speech guarantee "absolute"or "relative?" Let us examine this question by first turning to the annals of history

During the years 1917 through 1921 the United States saw numerous prosecutions, and convictions, brought about under the Espionage Act of 1917 and the Sedition Act of 1918 . Although such legislation would, in all probability, not survive judicial review in our time these acts made it felony under federal, and most states', law to criticize the President of the United States or to even utter a criticism of American involvement in the First World War. In fact, a perceived "lack of patriotism" or even having a German surname was often all it took to earn the wrath of self-appointed vigilantes that operated with total impunity (Note 2).

From this sad time in our collective history, we can infer that freedom of speech should be absolute. We may now turn to the question of constraint of free speech when such speech seems to be contrary to the prevailing social and / or political sentiment.

If we argue the position that public sentiments, or just "plain old common decency," should take precedence over statutory guarantees, we find that we are indeed standing on the proverbial "slippery slope." If suppression of any individual act of free speech, such as questioning the morality (or lack thereof) of American foreign policy toward Afghanistan, were to be considered "excusable" or "understandable," would that same rationalization be invoked in defense of other forms of "extrajudicial" censorship?

No one has argued, and probably never will, that the sermons delivered by Phelps and are anything other than "Hate Speech" or that the actions of his goon squad near the funeral service of LCpl. Matthew Snyder are, in some way, morally justifiable. In this writer's opinion, the actions of the members of Westboro Baptist Church that in the incident in Maryland are more suggestive of the Brown-Shirted citizens of Munich who stood outside the businesses of Jews waving signs that read "Achtung! Juden!"

I must turn,finally, to a question that must be asked: "If the actions of the Topeka Neo- Sturmabteilung are so contrary to "common decency," why haven't the "mainstream" churches risen as one unified body to unequivocally condemn Phelps' intolerence and religious bigotry, since it seems that the Rev. Phelps, in addition to his usual gay-bashing, also hates Catholics and is also not all that fond of Jews?

I insist that the silence on the part of the supposedly "moral majority" of this "Christian Nation" seems to be nothing short of a tacit approval of the venomous drivel espoused by the "Good Christians" of Westboro Baptist Church. My greatest fear is that, one day, our supposed moral leadership will stop asking "what would Jesus do?" and ask "what would Tony Soprano do?"

That, dear reader, is one very scary thought.

Notes

1. The "Slip Opinion" in Snyder v. Phelps can be read online at the Supreme Court's web site as 09-751 Snyder v. Phelps Et Al .

2. For a review of public and legal sentiments in this era, see my previous essays "Brown Shirts in America" Part I and Part II .

3. The World War I cases mentioned are to be found at Schenck v. United States. 249 U.S. 47 (the source of the often-misquoted dictum that "you can't yell fire in a crowded theater") and summarized at Wikipedia ) and at Debs v. United States, 249 U.S. 211 (also summarized at Wikipedia ).