Snyder v. Westboro and Unintended Consequences

Whether you are a red-meat macho man, or someone endowed with passionate and artistic sensibilities, a PC or Mac user, an all-American conservative or a wooly liberal, there is one thing we can all agree on. The antics of the Westboro Baptist Church of Topeka, Kansas are stomach turning, to put it mildly.

The Westboro Baptist Church, almost exclusively comprised of Fred Phelps and his family, has gained great notoriety over the years. They are best known for their theology of hate, of which homosexuals are targeted in particular. They are most reviled for protesting at the funerals of fallen soldiers.

Not long ago they picketed at the funeral of Elizabeth Edwards because of her advocacy of same-sex marriage and gay rights. A statement released ahead of the protest by Westboro stated, “Elizabeth Edwards [and] her faithless husband, John, lightly esteemed what they had. They coveted things that were not theirs –and presumptuously thought they could control God.” I’m not sure what that all means, exactly, but there you have it in all of its unhinged glory.

Last November, members of Westboro made one of their frequent raids into Oklahoma to brandish their “God Hates [fill in the blank]” signs at the funeral of Army Sergeant Jason James McCluskey. I read the report of what happened to the Westboro picketers with great amusement.

After a hardy round of picketing at Sgt. McCluskey’s funeral, and ready to call it a day, the Westboro members returned to their minivan to discover that while they were doing God’s bidding, their front and rear passenger side tires had been slashed. On two flat tires, they drove all around McAlester. Every mechanic and tire shop in town refused to service their vehicle. Finally the minivan was parked at a shopping center, AAA was called, and the hate-mobile was towed to Wal-Mart where their tires were replaced.

After reading the report, I thought, “Westboro, meet karma.”

Shortly after the incident Westboro released a statement that in retaliation for the incident at McAlester, they intended to picket the funerals of children in Oklahoma. The threat on their website announced, “The Lord curses them by killing Oklahoma’s children and casting them into Hell. Thank God For More Dead Children In Oklahoma!”

As odious as the Westboro organization is, we were reminded by the Supreme Court of the United States this March that the first amendment is too important to allow a hateful fringe group screw it up for the rest of us.

Albert Snyder, the father of a fallen soldier, brought suit against Westboro for picketing at his son’s funeral, alleging among other things, that Westboro’s presence near his son’s funeral amounted to the tort of intentional infliction of emotional distress. Westboro defended itself in the suit on the grounds that its protest and speech were activities protected by the first amendment’s right to free speech, and right to assemble. The Maryland jury in the case awarded Mr. Snyder $2.9 million in compensatory damages and $8 million in punitive damages.

The Supreme Court heard the case and sided with Westboro 8 to 1.

“Westboro believes that America is morally flawed; many Americans might feel the same about Westboro,” opined Chief Justice Roberts writing for the majority. In concluding the opinion, Justice Roberts stated:

“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.”

Less you should imagine unhinged is equal to ignorance of the knuckle dragging variety, think again. The Phelps clan is heavily populated with lawyers. Fred is a disbarred attorney. They have a thriving family law practice in Topeka that funds their cross-country shenanigans. Margie Phelps, one of Fred’s daughters and an attorney, successfully argued the Snyder Case to the Justices of the Supreme Court.

The cornerstone of democracy is contained in the First Amendment. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Without that, we’d be no better than a country controlled by a despot wherein dissenters would be regularly disappeared.

Westboro did not win the case without some help. Friend of the Court briefs were filed, in support of Westboro, by the ACLU, numerous legal scholars, the Thomas Jefferson Center for the Protection of Free Expression, and The Reporters Committee for Freedom of the Press, joined by 21 news media organizations, including The Associated Press, The New York Times, and yes, NPR. You could say that the First Amendment makes for strange bed-fellows.

My heart goes out to Mr. Snyder, and all of the parents and loved ones of the deceased whose funerals have been sullied by the presence of Westboro protestors. If in Mr. Snyder’s shoes, I would feel no differently than he–bereaved and let down by the high court. In an odd way, though, we have Westboro to thank for strengthening democracy in a country that they believe God hates for being too open and inclusive.

We all owe Westboro a round of thanks for insuring that in our democracy even the village idiot gets to speak his mind.