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Opening Arguments

Little big church

You can't say Fred Phelps and his merry band of 70-some pranksters at the Westboro Baptist Church are an inconsequential group. After his church picketed some soldiers' funerals in Indiana (to make the point that our soldiers are getting killed as divine retribution because "God hates fags"), the state legislature approved a law making disorderly conduct within 500 feet of a funeral a felony. Now the group has the attention of the U.S. Supreme Court with the Really Big Prize on the line -- the First Amendment.

Albert Snyder was awarded $5 million for his invasion-of-privacy and intentional-infliction-of-emotional-distress claims after Westboro picketed his son's funeral. But an appeals court overturned the verdict. Though the signs were "distasteful and repugnant," the court said, their words were wild and hyperbolic and not meant to be taken literally. While government may adopt regulations to protect the sanctity of solemn occasions such as funerals (such as Indiana's, I presume), "some breathing space" for contentious speech is essential under the First Amendment.

Snyder appealed that ruling, and the Supreme Court has agreed to hear the case:

. . . to decide the outer limits of free-speech protection for protests and to rule on whether a dead soldier's family can sue fringe religious protesters who picketed near their son's funeral carrying signs that read, "Thank God for dead soldiers."

Like the famous case of the American Nazis who marched in Skokie, Ill., the new case of anti-gay picketing at military funerals tests whether the most hateful protests must be tolerated under the 1st Amendment, even if they inflict emotional harm.

When the Snyder case was first reported in 2007, I blogged that perhaps "it's time to have a Westboro moratorium and just stop writing about the nuts, depriving them of the publicity they crave." Yet here I am again. It's hard to not to give them publicity, even if that's all they want, when what they're doing has the potential to bring changes to the law and our constitutional assumptions that affect us all. The First Amendment would seem to cover these fringe protesters -- it wouldn't be needed if people engaged only in popular speech, and I doubt if we have the "right" to not suffer emotional duress.  But I honestly don't know where this particular set of justices will come down on the issue.

PETA members are usually credited with being the greatest publicity geniuses around because their outrageous statements and stunts bring them far more attention than they deserve. I think they have to give up the crown to Westboro, though.

One of the stories, by the way, uses the phrase "the church's 70-odd members." That would read much better without the hyphen, don't you think?


Wed, 03/10/2010 - 8:46pm

Make fun of Phelps all you want - I'll join you.
But the sad thing is a majority of the Fort Wayne City Council agrees with him that "God hates fags," or at least transgendered persons.
By refusing to protect transgendered persons against discrimination, the council effectively approved discrimination against them.

tim zank
Wed, 03/10/2010 - 9:17pm

What precisely is the protection they are lacking Littlejohn?