Phelps' hateful words deserve protection

November 13, 2007|By Robert D. Richards

In 1989, U.S. Supreme Court Justice William J. Brennan Jr. famously wrote in a case protecting the unpopular right to burn the American flag in protest "that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Late last month, a jury in Baltimore added a footnote to that legal aphorism that carved out an exception when that expression involves the ideas of the Rev. Fred Phelps and his Topeka, Kan.-based Westboro Baptist Church.

Mr. Phelps and his flock of fanatics have grabbed national headlines for showing up at military funerals and shouting obnoxious, anti-gay slogans at the mourners, including the March 2006 services held for Lance Cpl. Matthew Snyder of Westminster. In the first such lawsuit of its kind, the jury awarded Albert Snyder, father of the deceased Marine, a staggering $10.9 million for the invasion of privacy and emotional distress visited upon his family as a direct result of Mr. Phelps' public display of misguided and misplaced homophobia.

The reverend cuts an unsympathetic figure, and several talk show hosts and legal commentators have applauded the jury's wisdom in awarding the astounding amount to the Snyder family.

But before celebrating what, on its face, appears to be deserved retribution against this reviled group, those Americans who value freedom of speech should step back and assess the damage that this case, along with the myriad state and federal laws enacted specifically to combat Mr. Phelps, have caused to the First Amendment.

In the lawsuit that wrapped up Oct. 31, the jurors applied concepts of privacy law to rule in favor of the Snyders and also determined that Mr. Phelps' hateful messages caused emotional distress to funeral attendees.

No doubt Mr. Snyder and his family presented an impassioned case. Jurors understandably would have a tough time not compensating them for their tragic loss. Moreover, the large punitive damage award - $8 million - is evidence that the jury found Mr. Phelps and his co-defendant daughters despicable and deserving of punishment.

Now, however, it will be up to the appellate courts to sort through the complicated web of First Amendment protections that may, in the end, trump the family's rights at issue in this case.

Two points augur in Mr. Phelps' favor. First, the speech occurred in a public space, and traditionally streets, sidewalks, parks and other open areas are considered First Amendment-protected sites. Second, however warped, Mr. Phelps' message is inherently political, and this country has a long legal tradition of affording political speech the highest level of protection regardless of how unpopular the message may be.

To Mr. Brennan's point, the Constitution is not needed to promote the majority's viewpoint. The majority can take care of itself. The First Amendment is needed to protect minority views - messages that most of us would find objectionable, such as the ones displayed by Mr. Phelps and his followers. This notion often doesn't sit well with pundits or the public at times, but it is the social contract upon which this democracy has flourished for more than two centuries.

Silencing a revolting speaker has consequences. When a monumental verdict against funeral protesters is handed down, or a law is passed to penalize such expression (Congress and several states have enacted such laws in direct response to Mr. Phelps, and more are promised) that social contract and the First Amendment that provides its foundation are weakened.

Despite the natural feelings of revenge toward Mr. Phelps, all of us need to recognize that our democracy is best served by tolerating views that most of us would deplore. That strengthens the nation and serves as a fitting tribute to the fallen servicemen and women who gave their lives to ensure that enduring freedom.

Robert D. Richards is distinguished professor of journalism and law at Pennsylvania State University and founding co-director of the Pennsylvania Center for the First Amendment. His e-mail is rdr2@psu.edu.

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