In an 8 to 1 ruling Wednesday, the U.S. Supreme Court was clearly not divided in its ruling that a controversial protest by members of a Kansas congregation at a military funeral is protected by the First Amendment.
“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,” Chief Justice John Roberts Jr. said, writing the majority opinion in Snyder v. Phelps, 562 U.S. ___ (2011). “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.”
Fred Phelps and his Westboro Baptist Church in Kansas believe soldiers’ deaths are due to the country’s tolerance of homosexuality, and they are following their religious beliefs in protesting at military funerals. In March 2006, seven
Westboro members picketed the Maryland funeral of Lance Cpl. Matthew Snyder, who was killed in Iraq. Matthew’s father, Albert Snyder, brought suit against Westboro, alleging physical and mental trauma resulting from the protests.
Local veterans such as Ken Moore, president of the Vietnam Veterans of American Chapter 20 in Rochester, were upset with the ruling.
“It makes me sick to my stomach to think people would do that,” Moore said. “I can’t voice enough anger about it. It’s so disrespectful.”
Moore questioned how hateful free speech could be protected at an honorable veteran’s funeral while the exercise of prayer in schools is not. He noted that members of the Westboro congregation came to Rochester to protest at the funeral of a Marine veteran in Brighton several years ago, but failed to procure the necessary permits.
“I’m in favor of the right to protest but this is different,” he added. “This is pure hatred and I hope they never come around here again.”
“In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like the petitioner,” Justice Samuel Alito Jr. wrote a strongly worded dissent.
But, Justice Alito was clearly in the minority and many legal and First Amendment scholars did not find the court’s decision surprising at all.
“I was surprised the Supreme Court took the case in light of the clear cut law on the subject — law that clearly favored the protestors,” said Scott Forsyth, attorney for the Genesee Valley American Civil Liberties Union.
Forsyth said protest speech on a matter of public concern “is to be protected as much as speech that is plain vanilla.”
Roy Gutterman, associate professor with Syracuse University Newhouse School of Journalism and director of the university’s Tully Center for Free Speech, agreed that the case didn’t seem to break new ground.
“Even if we as a society find certain speech offensive or hurtful, there is a place for it in the marketplace of ideas,” Gutterman said. “The broader issue is: Are we going to allow civil remedies to have an effect on speech?
“Free speech is very important to our democracy and even if we don’t like the message, we do have to hear it,” Gutterman added. “It’s still speech on a public issue.”
Snyder sued the Phelps for emotional distress and won in Maryland U.S. District Court before it was overturned by the Supreme Court on Tuesday.