Lawyer / Barrister / Solicitor
Constitutional: Let’s Talk About Westboro Baptist Church and the Court’s 8-1 Ruling in Snyder v. Phelps
Well, as my Constitutional Law students will tell you, I called the result, the vote, and the identity of the dissenter. What was my basis? I recalled the Court’s ruling last year in U.S. v. Stevens (the ‘crush’ video case), read Alito’s dissent therein, and knew that neither Kennedy nor Scalia (with decent Free Speech records, including Scalia’s almost twenty-year old ruling in R.A.V.) would not make a contrary ruling. Roberts was an unknown; however, his position in Stevens also dictated my ‘bet’ on his vote in Phelps.
For those unfamiliar with Westboro Baptist Church, it is a virulent, hate-styled group, targeting primarily homosexuals, and claiming that our Nation’s ‘pro-gay’ policies are responsible for a whole range of horrible events including, but not limited to, soldier deaths abroad, and the recent, tragic deaths in Tucson. Led by their minister, Fred Phelps, the group protests outside of funerals and hoisting signs which read, among other things, “God Hates the USA,” and “Semper fi fags.”
Chief Justice Roberts’ Opinion of the Court said the content of Westboro’s messages “may fall short of refined social or political commentary, the issues they highlight – the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy – are matters of public import,” and ultimately protected by the First Amendment. “Such speech,” Roberts wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Good ruling. I do not care for Westboro, or its message — however, this is a matter of core constitutional principles, which every citizen should similarly respect.
Tom Goldstein, founder of SCOTUSblog, also provided some decent insight into issues not addressed by the Court’s decision, noting:
The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.
Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.
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Paul Musgrave
Good analysis, Prof. Brett!
When I heard of the ruling, recalled the opinion you shared on the case in Judicial Processes a few weeks ago, where you said either 7-2 or 8-1 in favor of Phelps. I did have something of a knee-jerk reaction when the case was decided; a part of me does want to see the Phelps family suffer. That all disappeared though when I realized what a dangerous precedent would be made if the case were decided against the Westboro klan.
I was in Ohio over Spring Break, having coffee in a local restaurant with a few farmers who shared that very knee-jerk reaction I had in regards to Snyder. When I explained the same constitutional rationale that I had come to terms with as a result of your analysis, they quickly understood. None of us like Phelps or his cooky brood, but if their rights to free speech are denied, then all of our rights can be denied.