Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Posts for March, 2011

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.