The First Amendment Lives

Jim Burroway

March 2nd, 2011

That’s the 8-1 decision of the U.S. Supreme Court in the case of Snyder v Phelps (PDF: 248KB/36 pages), an appeal of a five million dollar judgment against the Fred Phelps and the Westboro Baptist Church. The court reversed a lower court decision in favor of the family of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq and whose funeral was picketed by the Phelps clan. The protests included signs with the statements “Thank God for Dead Soldiers” and “Fags Doom Nations.” The Phelps clan regularly protests military funerals to push their message that God hates the U.S. because we’re not executing homosexuals as Leviticus commands.

According to the majority opinion written by Chief Justice John Roberts, Westboro followed all of the legal restrictions imposed on the group, and by noting them, the court appears to have reaffirmed its approval of those restrictions:

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

…Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

Roberts warned that “our holding today is narrow” and is limited by the particular facts before the court. Those facts included that Westboro complied with local laws and did not instigate a public disturbance during their protest. As to the nature of Westboro’s protest:

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.

The Westboro Baptist clan protesting at Matthew Snyder's funeral

This ruling is important for many reasons. First and foremost, it preserves the primacy of free speech in America, which benefits us all. But from a parochial pro-LGBT narrative, it’s equally important to note that it proves the lie to the multiple instances when anti-gay activists falsely claimed that advances in LGBT equality and protections — whether they come in the form of marriage equality or hate crimes protections — will result in the infringement of religious and speech rights. They never have and, if this ruling is any indication, it reaffirms the fact that they never will. So the next time someone claims that marriage equality will result in pastors being prosecuted for hate speech, make a note of it: Snyder v Phelps.

Justice Samuel Alito dissented, noting that Albert Snyder, the marine’s father who brought the suit citing emotional distress, was not a public figure, but a private individual who simply wanted to bury his son in peace. He argued that the first Amendment does not mean “that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.” He then listed some of that possible emotional injury:

Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id., at 3781–3787. Another placard depicted two men engaging in anal inter-course. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

This line of reasoning suggests that Alito thinks being mistaken for “a homosexual” is grounds for emotional distress. Interesting…

There’s something else that’s even more interesting: Alito made a point that the larger court refused to consider.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A.Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” … Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly…

The larger court did not address the “epic” except in this footnote on page 3:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral” (emphasis added)); this Court’s Rule 14.1(g)(petition must contain statement “setting out the facts material to consideration of the question presented”). Nor did Snyder respond to the statement in the opposition to certiorari that “[t]hough the epic was asserted as a basis for the claims at trial, the petition . . . appears to be addressing only claims based on the picketing.” Brief in Opposition 9. Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case.

In other words, the Snyders may have had a claim based not on the protest itself, but on Westboro’s Internet posting that was addressed specifically to the family. But for whatever reason, the family chose not to pursue that claim before the high court. Given the court’s warning about the narrowness of the case based solely on the facts considered by the court, the decision might have been a bit different had the family’s attorney chose to include the “epic” as part of their appeal.


March 2nd, 2011

I want to demonstrate at Fred’s funeral. Well…actually do a little dance.

Lindoro Almaviva

March 2nd, 2011

I always thought that the whole case should have been tried on the basis of the internet posting and not on the protest, despicable as it was.

I am actually thinking that the day one of the Phelps dies, we should do have a demonstration with the same kind of message they bring to others.

I believe that in a way or another, they should actually see hoe it looks from the other side, even if they are so blind as to actually believe they are being the victims of hate in such an instance.


March 3rd, 2011

Yeah, because mimicking them certainly displays your side’s superiority!

When Phelps dies, the worst thing you could do to that family is fail to acknowledge it and allow them to fade into obscurity.

Rob in San Diego

March 3rd, 2011

I love how our nation didn’t care about them protesting at Mathew Shephards funeral, how our nation doesn’t care about what they are saying about us homosexuals, but they care when it comes to them protesting at our fallen soldiers funerals.



March 3rd, 2011

had nothing to do with what the “nation” cares about (as if a nation can have cares) but about what court cases got brought and made it that far.


March 3rd, 2011

I agree with you Lucrece. The clan should have faded into obscurity after Matt Shepard’s funeral. But they have effectively manipulated the media and the world to get their message free publicity and a permanent note in the annals of the US Supreme Court.

It’s time now for us to start ignoring them.


March 3rd, 2011

If America has free speech, how come you can’t say fukc on tv!

Richard Rush

March 3rd, 2011

I’m rather pleased to know that Westboro Baptist will continue to be one of the more prominent public faces of Christianity in America.

Priya Lynn

March 3rd, 2011

Jim said “This line of reasoning suggests that Alito thinks being mistaken for “a homosexual” is grounds for emotional distress. Interesting…”.

I don’t think he’s necessarily suggesting its embarrasing or shameful to be gay. For example one could acknowledge that a woman would find it emotionally distressing to be accused of being a man but that in no way suggests its embarrasing or shameful to actually be a man.


March 3rd, 2011

Jane: Technically, you can say “f*ck” and other four-letter words on TV and the radio, but you have to wait until the safe harbor period, from 10 p.m. to 6 a.m. There was a Supreme Court case that determined that after some guy sued Pacifica Radio for playing George Carlin’s “Seven Words” skit during the daytime while he was driving his daughter to school.

Another great thing about this case is that the Westboro people will come out (no pun intended) in force to picket more and more funerals of soldiers and gay people.

That’s horrible, of course, but I think a lot of the hatred of Westboro is misplaced. More than anyone, they give anti-gay rhetoric and activism a bad name. They’re what NOM and the FRC would be if they had a few too many at the bar and opened their mouths too wide.

Timothy Kincaid

March 3rd, 2011

The Phelps family serves an interesting purpose in our public dialogue.

Those who find conservative Christianity as practiced in the US to be offensive and hateful have an easy illustration, one that is readily known. One only need to say, “You are all like that Phelps guy, the ‘God hates fags’ guy” and everyone knows what you mean.

On the other hand, they are also useful to Conservative Christians by being the extreme end of the spectrum. Conservatives can divert the question about specific issues (marital rights, for example) by saying, “We denounce the Phelpses because real Christians love the homosexual.” By comparison, Tony Perkins is a smidgen less extreme.

Local politicians and preachers find the Phelpes useful in being a handy strawman. They can denounce the Phelpes without offending anyone or losing a single vote. Nobody – no matter how conservative – gets upset if you say, “God is love, not hate. He loves the sinner.” So the Phelpses are something that all opposing sides have in common.

Objectively, Fred and his family really should have little attention. They are not doing anything unusual (pickets are part of daily life) or taking positions on issues that are out of the norm (protesting ‘the gay agenda’ is the goal of many an organization).

But they serve us as a symbol, a cultural reference point, and it is for that reason that they get media and public attention.

Barb Bach

March 3rd, 2011

As a 64 year old daughter of a Marine, Mother,Grandmother,and lesbian, I wish the people who are in Phelps church be stricken with some plage and not recover. When, as they believe, stand before God when they die, I hope God is the biggest, gay military woman or man they have ever seen! Surprise!!


March 3rd, 2011


I think that’s what other anti-gay conservatives have tried to do, but is that how the public sees it? I’ve long maintained that the Phelpses represent the same ideas as groups like the FRC, but without the politeness. I think the FRC et al feel this need to distance themselves from Westboro because the church is sort of like a full-body airport scanner for them.


March 3rd, 2011

This is how they make their living. They behave as provocatively as possible then sue whatever township they are in if a passerby so much as looks at them funny. Not unlike Bryan Fischer. Who knows what they do or don’t believe? It’s sort of beside the point.

John Culhane

March 3rd, 2011

No, no, no. This decision is all wrong. The First Amendment is being used as a shield here, and this private tort plaintiff deserves compensation just as surely as had one of the Phelpses punched him. I offer an extended legal analysis on my blog, and also criticize the effort made here to use the case as a defense against the anti-equality forces in other contexts. Here is the post:

Timothy Kincaid

March 3rd, 2011


your analysis is spot on

Ben in Oakland

March 3rd, 2011

Bang on, Timothy and Jim. This is what I posted elsewhere in response to an article on This Very subject:

Here’s the lesson we learn from the Phelpsters.

Some people are quite explicit about the hatred in their hearts. Bravo to the Phelpsters. at least they’re honest.

That is VERY useful to the people who have the same hatred in their hearts, but prefer to dress it up in its Sunday-go-to-meetin’ drag of “moral concerns” and love-the-sinner. As they will observe about the phelpsters, such obvious hatred is a real turn off to people who wish to be reasonable.

when the traditional marriage people call me and my marriage a threat to marriage, family, faith, children, religion, freedom, and western civilization, they do it with a you-poor-sinner look of deep sorrow on their faces. but they are still willing to lie, distort, and deceive through their pearly white teeth. Their message, however delivered, is no different from the WBC.

You don’t hate anyone. Honestly, you don’t. The Biblical message is all about compassion, about loving your neighbor and all that. You love homosexuals. You really do.You really, really love us.

You just hate our marriage destroying, military endangering, disease spreading, child molesting, morality ruining, religion despising, freedom hating, family attacking,, god blaspheming, sanctity desecrating, same-sex lusting, public fornicating, society wrecking, perverted, disgusting, immoral ways.

And really now, where’s the hate in that?

Amazingly, ALL of that disappears the moment we become hetero, Or find Jesus. Whatever.

Let me repeat. the least, are honest in their intentions and methods.


March 3rd, 2011

Jim, you are so wrong. We live in end times. “The constitution hangs by a thread.” Obama corrupted Alito and that means he can do it again. We are only one vote away from losing the definition of marriage and, with it, the book of civilization. Family Values groups will teach “Westboro Rules” are okay to their kids in kindergarten, and you won’t be able to do anything about it. It’s a another sign that Satan is taking over, when the profane is elevated to the good. President Bush, a holy man with God in his heart (“good people, you know”) recently back from the Crusades, has already said that Gog and Magog are at work in the mideast.

So, never have things been more dangerous. Keep fear alive, you chicken.

-Freedom Friar #425, Colbert Nation

Lynn David

March 3rd, 2011

You did not post Alito’s more eloquent dissenting arguments. Alito would draw the line in the sand concerning public speech in a most private setting. I think many an American would agree with him.

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote. “Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right.”

The whole idea of public purpose behind the protests did not in Alito’s mind negate private and personal damage. I would go further and point out that it is in fact the very private act which is the reason Westboro protests. I like Alito’s thinking here: “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”


March 4th, 2011

Alito may have a point, but he can’t technically rule that way because it is contrary to the Constitution. We would have to amend the first amendment. It sucks they have to abuse it, but we can’t take it away because of these idiotic people, and they know that and exploit it. Don’t worry. They will get what’s coming to them. They will attempt to keep Poppa Phelps’ death a secret, but it will only last so long. Before long, he will be rotting in the ground and the whole nation will celebrate. Hopefully then his crazy children will get therapy and realize how awful they were and change their ways like Nate Phelps did.


March 4th, 2011

Mr. Burroway, I appreciate your insight that this ruling undermines efforts to claim the courts are limiting the free speech rights of clergy, at least when speaking on public property.

I am an openly gay pastor in the United Church of Christ. On Feb 16, I received a telephone call asking me to circulate a petition in my congregation to place a constitutional amendment on the California ballot. This amendment, the caller said, is necessary to protect clergy against government efforts to control what is said from pulpits. I pressed the caller about exactly what govt efforts she was speaking of. She rattled off a long list of court rulings related to one clause or the other of the First Amendment. I continued to press her and, actually, drove her to tears (which, in a strange way, I’m kind of proud of!) I went to the website she gave me and was truly alarmed. I am informed about these matters, so know this effort is, well, wrong, not just misguided, but wrong on the facts and the law.

Not once has a govt official ever come into my church building and ordered me to stop saying whatever it is I am saying. You’d think they’d do that when I preach in favor of marriage equality, a view that opposes both state and federal law. But it’s never happened. If it happened, I believe I’d have a First Amendment case on my hands.

The Phelps clan knows exactly what they can and cannot do within the law. Everything they do and say is reprehensible and demonstrably opposed to the teachings of Jesus. But they know how to say it without getting into real legal trouble.


March 4th, 2011

For those interested, the website I mentioned in my earlier comment is Not much on it about the proposed amendments, though.

Lynn David

March 4th, 2011

Erin: Alito may have a point, but he can’t technically rule that way because it is contrary to the Constitution. We would have to amend the first amendment. It sucks they have to abuse it, but we can’t take it away because of these idiotic people, and they know that and exploit it. Don’t worry. They will get what’s coming to them.

I would argue that a reverent silence is also speech and has the upper-hand in a private setting. Westboro’s protests are to specifically deny that component of speech and moreoften what is a component of religious speech in what is a private moment if not private setting. In point of fact, Westboro may be intruding up on the rights of people in the free exercise their religion. So I would say that Westboro has two strikes against them.

I don’t see how the Westboro group “get what’s coming to them.” Do you mean a god-based judgement in the ‘hereafter?’ Sorry, don’t have a belief in a god. When you’re dead, that’s it.

Timothy Kincaid

March 7th, 2011

I would argue that a reverent silence is also speech and has the upper-hand in a private setting.

I hope you are not arguing that some speech is protected and other speech is not. Like, say, keeping silent is protected while religious speech which you find objectionable is not allowable within 1000 yards of a private setting?

If you are premising the argument on the idea that socially acceptable speech is protected under the constitution and that socially undesirable speech is not, then I think you fail to see the purpose of the freedom of speech provisions.

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