In an important reaffirmation of free speech principles, the US Supreme Court on Wednesday ruled that noxious, highly offensive protests conducted outside solemn military funerals are protected by the First Amendment when the protests take place in public and address matters of public concern.

The high court ruled 8 to 1 that members of the Topeka, Kansas-based Westboro Baptist Church are entitled to stage their controversial antigay protests even when they cause substantial injury to family members and others attending the funeral of a loved one.

“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,” Chief Justice John Roberts wrote in the majority opinion. “On the facts before us, we cannot react to that pain by punishing the speaker,” he said.

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“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,” the chief justice wrote.

In a lone dissent, Justice Samuel Alito said the nation’s commitment to free and open debate “is not a license for the vicious verbal assault that occurred in this case.”

“Respondents’ outrageous conduct caused petitioner great injury, and the court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered,” Alito said.

At issue in the case, Syder v. Phelps, was whether the Westboro Baptist Church and its protesting members could be sued for the emotional distress they caused to Albert Snyder when the church decided to use his son’s military funeral to try to gain media attention for its controversial religious message.

Preacher Fred Phelps and his followers say that God is punishing the United States for its tolerance of gay rights by causing the deaths of US service members in overseas wars.

In March 2006, seven Westboro Baptist Church members took up a position outside the church where the funeral of US Marine Matthew Snyder was to be conducted. They displayed signs proclaiming: “Thank God for Dead Soldiers,” and “You’re Going to Hell.”

The protesters stood in a cordoned off area approved by police about a thousand feet from the church. They sang songs and waved their signs. They conducted the protest for a half hour and left eight minutes after the funeral began.

Mr. Snyder later told reporters that the Westboro Baptist Church’s selection of his son’s funeral for the protest had tarnished forever his final moments with Matthew. He hired a lawyer and sued.

A jury awarded the grieving father $11 million in damages for intentional infliction of emotional distress. The district court judge reduced the award to $5 million. But the Fourth US Circuit Court of Appeals threw the entire verdict out, citing free speech protections.

In upholding that appeals court decision, the Supreme Court said the Westboro Baptist Church protest addressed an issue of importance to the public, and did so on public property in full compliance with local officials. Although the protest was planned to coincide with Matthew Snyder’s funeral, the court said, it did not disrupt the funeral.

Chief Justice Roberts cites 'special protection'

What was offensive, Chief Justice Roberts wrote, was not the presence of protesters near the funeral but the content and viewpoint of the protesters’ message.

“A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability,” he said. “It was what Westboro said that exposed it to tort damages.”

Roberts wrote: “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.”

The decision notes that public protests can be regulated under reasonable time, place, and manner restrictions. It adds that 44 states and the federal government have enacted laws regulating picketing at funerals.

The court rejected Snyder’s argument that he and others were a captive audience at the funeral and that Westboro Baptist Church impermissibly intruded into and disrupted that seclusion.

The Constitution does not look to the government to decide which types of speech are sufficiently offensive to trigger protection for unwilling listeners or viewers, the court said. Rather the appropriate response is for a viewer to simply avert his eyes.

The Westboro protest was far enough away from the funeral that Snyder could see only the tops of the signs when driving to the church. In addition, the court said, there is no evidence the picketing interfered with the service.

“We decline to expand the captive audience doctrine to the circumstances presented here,” Roberts said.

Justice Alito's dissent

In his dissent, Justice Alito said it is not necessary to permit the “brutalization of innocent victims” like Mr. Snyder to have a society that fosters open and vigorous debate.

“Albert Snyder is not a public figure,” Alito wrote. “He is simply a parent whose son, Lance Corporal Matthew Snyder, was killed in Iraq.”

“Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace,” Alito wrote.

But members of the Westboro church “deprived him of that elementary right” when they turned Matthew Snyder’s funeral into “a tumultuous media event,” he said.

The protesters launched a “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability,” Alito said, causing Albert Snyder to suffer “severe and lasting emotional injury.”

Alito added: “The court now holds that the First Amendment protected [Westboro’s] right to brutalize Mr. Snyder. I cannot agree.”

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