Fred Phelps, the deranged pastor of the Westboro Baptist Church — which is more like a family entourage of psychos — has devised a scheme for getting attention: He desecrates military funerals. His group shows up chanting hateful slogans and carrying signs reading “God Hates Fags,” “Thank God for IEDs,” and “Thank God for Dead Soldiers.” They claim that these tragic deaths are divine punishment for social acceptance of homosexuality.
Albert Snyder, the father of a fallen Marine, sued Phelps for protesting his son’s funeral. He won millions. The Supreme Court overturned that verdict Wednesday.
I think the decision is a travesty. But, alas, after reading it, I also find it perfectly defensible, probably even correct. Anyone familiar with the concept of “garbage in, garbage out” can appreciate that this isn’t necessarily a contradiction.
The court had to deal with the narrow facts of this case, the relevant trial history, and precedents, and in doing so, they came out in a terrible place: in effect defending a “right” Phelps should not have. As Chief Justice John Roberts put it, “The reach of our opinion here is limited by the particular facts before us. . . . [We rely] on limited principles that sweep no more broadly than the appropriate context of the instant case.”
But you wouldn’t get the sense that this was a narrow, even shallow, victory for free-speech absolutists based on much of the commentary about it. Nearly all of it boils down to a single insight: Just because speech is offensive doesn’t mean we can ban it.
Making funeral protestors “shut up” is tempting, concedes the Detroit Free Press, but “anyone who values their freedom should understand why that’s just not the American way to deal with hateful, hurtful speech.”
The Supreme Court simply confirmed that “free speech has meaning only if objectionable speech is included,” insists USA Today.
These are fine expressions of general constitutional values shared by most of us. But they’re absolutely useless for figuring out how to treat speech in the real world.
For example, in its decision, the court upheld severe regulations on funeral protestors. Indeed, Snyder himself couldn’t make out Westboro’s signs or hear their chants at the funeral, because Maryland officials required the protests to be at least 1,000 feet away (though I’d be fine with making it 10,000 feet). It was only days later that Snyder saw on TV what the protesters were saying, or read on the Internet their vile personal attacks on his family.
Why don’t these restrictions offend free-speech absolutists?
Perhaps because, even though we like to mouth platitudes, we actually recognize that some speech is so vile, so beyond the pale, that we as a society understand that it might impinge on other things we hold dear — like the reasonable expectation that a parent might have to bury his child respectfully and in peace.
And that’s why Phelps’s tactics are the real issue, as Justice Samuel Alito’s compelling dissent makes clear. Westboro deliberately taunts the grieving family — tipping off the press in the process — because it knows such heartless cruelty counts for “news.” If the press grew bored with the protests, Westboro would likely invent a new tactic. Screaming obscenities at first-graders perhaps?
Nobody questions Phelps’s right to say what he wants to say — about anything. The question is whether funerals should be “no-free-speech zones,” as some absolutists put it.