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Globe Editorial

Slurs at soldier’s funeral are outrageous, but not illegal

August 23, 2010

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WHEN THE Supreme Court takes up the case of Snyder v. Phelps this October, it will have to judge between a deeply sympathetic appellant — the grieving father of a fallen US Marine who wanted to bury his son in dignity and peace — and a repugnant appellee — the fanatic fringe group that picketed the funeral with signs reading “Thank God for Dead Soldiers’’ and “God Hates the USA.’’

Our hearts go out to Albert Snyder, whose son was killed in Iraq in 2006. And we have nothing but contempt for the so-called Westboro Baptist Church, the venomous family cult led by Fred Phelps that mocks mourners at military funerals to promote its belief that US deaths in Iraq and Afghanistan are God’s punishment for America’s tolerance of homosexuality. But however hateful or hurtful the Westboro message, it is protected by the First Amendment, and so the Supreme Court should rule.

When Lance Corporal Matthew Snyder was laid to rest in Westminster, Maryland, Phelps and six of his relatives protested nearby — far enough away to comply with local regulations, but impossible for the mourners to miss. The Westboro group’s grotesque website added insult to injury by describing Corporal Snyder’s parents as having raised their son “for the devil’’ and “taught him that God was a liar.’’

The Snyder family sued Phelps and his church for invasion of privacy and intentional infliction of emotional distress. A federal court awarded $5 million in damages, but the Fourth Circuit US Court of Appeals reversed on First Amendment grounds. The Snyders’ appeal to the Supreme Court is supported by the attorneys general of 48 states and the District of Columbia, who argue in an amicus brief that funerals are uniquely sacred and private, and that the Phelpses can be penalized since their “outrageous personal attacks on Matthew Snyder and his family did not involve a matter of public concern.’’

But the AGs are wrong. The impetus for the Westboro attacks was political, crazily so. But there is no outrageousness exception to the First Amendment. The right to free speech is not absolute — it does not protect fraud, for example, or obscenity, or falsely shouting “Fire!’’ in a crowded theater — but the Supreme Court has held time and again that the Constitution does not allow speech to be suppressed or made the basis of a claim for damages on the grounds that it is vicious, tasteless, or shockingly insensitive.

There is no doubt that the Snyders were grievously wounded by the vile expressions of Phelps and his followers. But if the court opens the door to multimillion-dollar liability awards for the emotional distress caused in this case, it will be opening it as well to countless other claims against countless other speakers in the future. Maine Attorney General Janet Mills, who (along with Virginia AG Ken Cuccinelli) declined to join the amicus brief signed by her counterparts in every other state, emphasized the point. “Once we start carving out exceptions to the First Amendment for speech that is unpopular or offensive,’’ she said, “then we start down a slippery slope that endangers the right of all of us to hold and express views that may be thought unpopular by others.’’

The First Amendment would be worth little if it only protected the expression of reasonable opinions and likeable ideas. What makes it such an indispensable bulwark of American liberty is that it also protects the expression of cruel, stupid, and loathsome ideas. Odious as the Phelpses are, the Bill of Rights covers them too.

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