Fred Phelps and the rest of his sick, twisted family, calling themselves the Westboro Baptist Church, are excerable and revolting stains upon our body politic. I wish they would go away.
But the result in this case today could not have been otherwise. If we are to take free speech seriously in this country, that means tolerating speech we don’t like. And it’s really easy to really not like Fred Phelps. But at the end of the day, Chief Justice Robers gets it right:
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. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.
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.
Really, if you think about it, a lot of the names that we associate with free speech law were engaged in speech that was thought of as really despicable at the time. The named parties in these cases are pornographers, communists, anarchists, flag-burners, and Klansmen. The most innocuous of them is Paul Robert Cohen, who protested the Vietnam war in a vulgar fashion. But if the Constitution does not protect the most ignoble among us, then it also will not protect the most noble. If Fred Phelps can be sued into oblivion for saying what he thinks is right, then you can too, and that isn’t an acceptable result. The lesser of the two evils is allowing Phelps to say some of the most hurtful things imaginable, with impunity.
Which is why we can, and must, celebrate the continued vitality of the First Amendment and the role of our courts in safeguarding our liberties in a sober and mature fashion; while today’s decision is a victory for free speech, we need not endorse the content of the speech thus protected.