Westboro Court Decision Pits Free Speech Against Common Decency

WASHINGTON -- Fred Phelps and his Westboro Baptist Church may have won their case in the U.S. Supreme Court today, but not even the most ardent advocates of free speech are rejoicing.

"On a personal level, I can't imagine a single person in this country who doesn't feel the pain of this father" whose Marine son's funeral was picketed by the hate-spewing church, said Gene Policinski, executive director of the First Amendment Center. "But a free and open marketplace of ideas requires us to hear positions and views that we don't like and which deeply offend us."

The Supreme Court ruled 8-1 that the fringe church could not be held liable for monetary damages sought by the family of a slain Marine. Matthew Snyder, who died in Iraq in 2006, was just one of many fallen warriors whose funerals were sullied by Westboro protesters holding signs saying "You're going to hell" in a twisted logic that claims dying in war is God's way of punishing U.S. tolerance of homosexuality.

Outside of Phelps' church-cum-family, it would be hard to find anyone who wasn't offended by the group's protests at military funerals.

As word of the court decision spread, reaction ranged from "just because it's legal certainly doesn't make it right" to "I'm very glad that the Supreme Court still protects free speech." Many expressed frustration at the seeming indecency of the result.

The Veterans of Foreign Wars "is greatly disappointed" by the decision, said spokesman Joe Davis. "The Westboro Baptist Church may think they have won, but the VFW will continue to support community efforts to ensure no one hears their voice. The right to free speech does not trump a family's right to mourn in private."

American Legion national commander Jimmie Foster said that while his group appreciates "the sanctity of freedom of speech, we are very disappointed that any American would believe it appropriate to offer such sentiments as those expressed by the Westboro Baptist Church, especially at the funeral of an American hero who died defending the very freedoms this church abuses."

If there is any solace for veterans in the court's ruling, it's that Westboro hasn't reserved its venom for the military.

A half-dozen church members showed up in 2007 at the funeral of Moral Majority founder Jerry Falwell. His crime? The fundamentalist Christian minister -- who accused the children's character Tinky Winky of being a closeted gay -- was, according to Phelps, too soft on homosexuality.

More recently, Westboro members have turned their hate speech against Jews, picketing synagogues from Washington state to New York City in an anti-Semitic campaign claiming all Jews are sinners. They also had planned to picket the funerals of those gunned down in the shooting of Arizona Rep. Gabrielle Giffords but agreed to cancel that protest.

If Westboro's screeds against gays appear irrelevant to the war in Iraq and an assassination attempt on a member of Congress, Chief Justice John Roberts wrote that their protests deal with "matters of public import" and are thus protected by the Constitution.

Courts have ruled in favor of other distasteful plaintiffs whose words were actually targeted with painful precision.

When neo-Nazis announced plans in 1997 to march in Skokie, Ill., a predominantly Jewish community that included thousands of Holocaust survivors, the nation debated how much free speech was too much. The Nazis won on First Amendment grounds but agreed to take their politically and emotionally incendiary march to Chicago instead.

By the time Westboro protested at his funeral, Falwell couldn't complain. But nearly 20 years earlier, the Supreme Court ruled against him in a lawsuit against Hustler magazine, which had run a parody of the religious right leader.

As the American Civil Liberties Union noted in its friend of the court brief in defense of Phelps, "Outrageousness, in the area of political and social discourse, has an inherent subjectiveness." The ACLU said the court in the Hustler case was correct that 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."

In a statement on today's ruling, ACLU legal director Steven R. Shapiro said: "The Court's decision properly and respectfully acknowledges the Snyder family's grief. But it correctly holds that the response to that grief cannot include the abandonment of core First Amendment principles designed to protect even the most unpopular speech on matters of public concern."

Today's decision to protect "the most odious speech" is just the latest Supreme Court affirmation of the prime freedom accorded in the Bill of Rights, said Floyd Abrams, a leading First Amendment lawyer whose cases have included the Pentagon Papers.

"Virulent anti-Catholic speech was protected in Cantwell v. Connecticut, anti-black and Jewish speech in Brandenburg v. Ohio, anti-American expression -- by burning U.S. flags -- in Johnson v. Texas," he wrote in an e-mail to AOL News. "The ruling today represents another example of American fidelity to the principle of freedom of expression to a degree that is unknown anywhere else in the world."

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