The US Supreme Court ruled yesterday by an 8-1 vote that the bizarre anti-gay funeral picketers belonging to the Westboro Baptist Church have a First Amendment right to free speech. Rev Fred Phelps and his crew have been waving placards with messages such as “Thank God for Dead Soldiers” and “AIDS Cures Fags” at military funerals to promote their belief that God is punishing the US for accepting homosexuality.
The Supreme Court decision (see below) overruled a previous award of over $10 million (reduced on appeal to $5 million) to the family of Lance Corporal Matthew Snyder in relation to a protest at his funeral. Snyder’s father reacted by saying that the eight justices didn’t have the common sense that God gave a goat.
Should we be celebrating this as a victory for free speech? While no one would welcome a visit from the Westboro protestors at the funeral of a loved one, there are several distinctive features of this case.
First, undoubtedly debate about war, its causes and casualties is important. This was “speech” in a public place on an issue of public concern, even though the particular hypothesis is ridiculous and offensive. Free speech protection can’t, however, just be for views already presumed to be true.
Secondly, protestors were scrupulous about staying within the letter of the law. They knew that they had to remain 1,000 feet from the funeral, for instance, and did not shout or otherwise disrupt the service. Preventing such orderly protests on issues of importance would have been a serious attack on civil liberties, even though the protestors displayed gross insensitivity to those mourning.
So, yes, we should welcome this decision even though it protects bigots of limited reasoning ability about cause and effect who are indifferent to the feelings of the recently bereaved. The best response to hateful speech is surely counter-speech. At many recent military funerals, counter-protestors have arrived early in their thousands and occupied the prime spaces in the surrounding area. That is a far better reaction than a legal gagging order.