Snyder v. Phelps

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.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. It was 8-1.
    The 1 was Alito.

    In his dissent, he pointed out perfectly reasonable limits to rights such as “Free Speech”. Hell, I’m surprised he didn’t appeal to “yelling fire in a crowded theater”.

    • Silly rabbit. Free speech is for corporations.

  2. Kant wrote he had to deny knowledge to make room for faith. He was not aware that the best liars evolution left us with are those with a niche to fill. They have no remorse, they practice lying every day to hide that fact. The need higher authorities, they agree with capital punishment. Because they lie so well, organizations that need liars, attract them, reward and empower them. They pass laws and policies which cause people do die, they don’t loose any sleep. If you pray for liars, don’t be surprised if they start making decisions for you. They are psychopaths for Jesus Christ of the Christian Right.

  3. I am not certain but I suspect that there are very few Christians in the last thirty years who have done more to advance the cause of Athiests and Agnostics than Phelps.

    • I disagree. Falwell, Robertson, and Dobson, yes, because they illustrate what would happen if their brand of know-nothingness ever gained real power. Phelps is so universally despised by secularist and fundamentalist alike that he barely counts as a Christian.

  4. Clearly, there’s no right to desecrate a funeral, which is a private gathering even though it’s often held in public. But so long as the WBC is required to keep out of sight and earshot of the mourners, they are wholly within their rights.

    One of the things that’s irritating about the WBC is that they’re practicing asymmetric warfare. If a group of the sane were to go picket one of their events, they’d revel in the attention.

    • Well, there it is; if the WBC is explicitly tying its demonstrations to the event in question, then can it really be said to be out of sight and earshot?

      In a world where live TV can be broadcast anywhere in the world, can anything be said to be “out of sight and earshot”?

  5. It seems to me that the problem with the SC punting on the issue–retreating to “the First Amendment says what it means and means what it says, argument over”–is that a lot of lower courts looked to the SC for guidance in civil trials.

    That is, they looked at the issue, saw the essential First Amendment nature of the issue, and said “we aren’t touching this one until the SC provides some guidance about what to do”.

    Now the SC has cast all of us back into the wilderness. Do the families have any retribution against this? Any at all? Someone who is slandered can seek legal restitution, but what can you do if a reprehensible person uses your event as free publicity for their own activities?

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