Hateful the Speech, Loving the Law

Once upon a time I believed in the complete impartiality of the US Supreme Court. Then came Bush v. Gore and my idealism was shattered. Yet, there remains one area in which the justices are consistently true to the Constitution: The First Amendment.

Yesterday, that proved true again. The Court ruled 8-1 in favor of free speech and assembly in Snyder v. Phelps, more commonly known as the Westboro Baptist Church case. Westboro Baptist Church and its Pastor Fred Phelps certainly fit the bill of a true First Amendment case. Phelps and his church members have protested at hundreds of funerals of military members killed in Iraq andAfghanistan as part of their religious view that God is punishing Americafor its tolerance of gays and lesbians. (Whether the dead soldier was, in fact gay, is immaterial to their purpose.)

They carry signs that say hateful things like: "God Hates You," "You Are Going To Hell," and "Thank God for Dead Soldiers."

Albert Snyder, the father of a Marine killed in Iraq, sued the church in 2007 for intentional infliction of emotional distress. He claimed he had been denied the right to bury his son in a private, dignified manner, free from unwanted disruption or harassment.

In the Snyder v. Phelps case, behavior as speech was the central issue, as well as the requirement that the protestors remain 1000 feet away from the funeral. No allegation that they violated this ordinance came before the high court.

First Amendment cases almost always present themselves in the ugliest of contexts. Will we protect the right to free speech and peaceable assembly, even when the speech is detestable, the message deplorable, the context insensitive, the intent to inflict distress?

Nowhere has the issue been more starkly presented than in the 1988 case Hustler Magazine v. Falwell. Pornographer Larry Flint’s Hustler Magazine had parodied the Reverend Jerry Falwell in the most disgusting manner (I won’t describe it here, but the reader can easily imagine -- or Google -- it.) The reverend sued the pornographer for, among other things, intentional infliction of emotional distress. Flint responded by wrapping himself in the First Amendment.

The Supreme Court ultimately ruled that Hustler was protected by the Constitution precisely because the challenged speech was a parody; reasonable readers would not have interpreted it to contain factual claims. The First Amendment protects parodies of public figures from civil claims, even if they were intended to cause emotional distress. The vote was 8-0 (Justice Kennedy did not participate.)

I was in law school at the time and the moment was a formative one in my legal training. While other long-held constitutional principles were at risk of upset, as the Court shifted to the right, I could see that the First Amendment was the one principle around which a majority of justices would rally. While it is true that behavior as speech has been more divisive (flag burning, for example, elicited a slim 5-4 majority in the landmark case Texas v. Johnson), the Court still comes down on the rights side of the issue.

And those cases that are about speech as speech seem to bring out the best in the justices, even the strict constructionists. Take Scalia in the 1996 case US v. Virginia: "The virtue of a democratic system with a [constitutionally guaranteed right to free speech] is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change." 

Snyder v. Phelps pitted the free speech rights of a group of arguably mean-spirited but dedicated religious zealots against the asserted privacy rights of a sympathetic military family. Classic case. Sounds like a tough decision; but it's easy.

As long as you are true to your constitutional principals. The Supreme Court was. It held that protest messages and picketing, even at a private funeral, are protected by the First Amendment.

I talked about the case with Brian Lehrer back in October, and as I said then, the Phelps case is the kind case that reminds us why we have a Constitution. Phelps and his odious speech is precisely the speech the First Amendment was designed to protect: The speech of the fringe, the speech of minority, the speech we least like, the speech of Pastor Phelps.

The Phelps case reprises the Hustler case. But it is Hustler for the little guy. Like Hustler, Phelps started out as a civil case. Like Reverend Falwell, the father here sued for intentional inflection of emotional distress.

But here, an even more conservative Supreme Court went further on free speech. Jerry Falwell was a public figure. But the question in Phelps was whether an ordinary citizen, Mr. Snyder, had some privacy interest that might trump the First Amendment. The Court ruled he did not. For the majority, the case turned on whether the protestor's speech was of "public" concern -- in other words, speech with some social, community or political interest. Once the Court decided that it was, the conclusion was obvious: “Simply put, the church members had the right to be where they were.”

Justice Alito, the lone dissenter, misses the point. With due respect, he focuses not on the speech, but on the audience. That is precisely the opposite of what the framers intended.

Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues. You can follow her on twitter.