Although it tends to be overused and misattributed, the summary of Voltaire’s thoughts on free speech — “I disapprove of what you say, but I will defend to the death your right to say it” — epitomizes my views of the First Amendment. More important, that view was reinforced by the U.S. Supreme Court today in a lawsuit against one of the more detestable religious organizations in the country.
Snyder v. Phelps involved a lawsuit against Westboro Baptist Church, which has gained national notoriety for picketing military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality. Here, they showed up at the funeral of a Marine killed in Iraq with signs that said, among other things, “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” and “Thank God for Dead Soldiers.” The family of the soldier won a $5 million judgment against the church for intentional infliction of emotional distress. But, by an 8-1 vote, the Supreme Court said the First Amendment precluded the award.
The Legal Satryicon puts it well: “To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does.” Yet the fact we may not like or vehemently disagree with particular ideas on public issues or matters of public concern is one of the things the First Amendment stands guard against. And that’s where the Court came down. As offensive as the signs may have been, they were displayed in a public place and expressed the Church’s views on issues of public debate, such as the conduct of the nation and homosexuality.
Are Westboro’s statements and actions offensive? Undoubtedly. Is it an extremist church? Unquestionably. It will be easy for both the left and the right to condemn the decision in this case as they play to their political audiences. But we all need to recognize that disagreement with the content of speech on public issues doesn’t mean we can punish someone for his or her views. In fact, First Amendment principles are working here. Westboro’s tactics have been almost universally condemned, a step toward their ideas also being rejected in the marketplace of ideas, the court that really matters.
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.
Majority opinion, Snyder v. Phelps
I heard one lawyer say that the courts can’t of course regulate religion, but they can regulate conduct (for instance, religions that want to use drugs). Is hate speech conduct? Apparently not.
That is a fine line and not necessarily a valid distinction. When the students in Des Moines wore the black armbands to protest the Vietnam War, the Supreme Court said their conduct “was closely akin to ‘pure speech.'” In the proverbial situation of shouting “fire” in a movie theater, that is plainly “speech.” Speaking perhaps too broadly, the key is not the type of activity as when, where and how it takes places (time, place and manner regulation). The statute that would have regulated the conduct in Westboro was not enacted until after the fact so the case was strictly whether this was protected speech.