It's easy to defend most free speech against government restriction. It's difficult to defend the appalling signs and sidewalk ravings of Fred Phelps' flock at military funerals, which is why it will be fascinating and instructive to see what the U.S. Supreme Court does with a Phelps case next fall.
The Phelps clan at Topeka's Westboro Baptist Church, long a statewide shame, began picketing military funerals across the country in 2005 to promote its bizarre belief that the U.S. deaths in Iraq and Afghanistan are God's punishment for society's tolerance of homosexuality. Its version of speech — with signs declaring "Thank God for dead soldiers" and worse — has sent lawmakers in 40 states including Kansas scrambling to pass "time, place and manner" restrictions on such funeral protests.
The high court decided Monday to consider the appeal of Albert Snyder, who won a $5 million verdict in a federal court in Maryland against the Phelps clan for emotional distress and invasion of privacy over its picketing at the March 2006 funeral of his son, Marine Lance Cpl. Matthew Snyder, and its Web site comments.
Satisfying as the verdict was for Kansans tired of being associated with the Phelps demonstrations, it always faced long odds on appeal. And sure enough, the 4th U.S. Circuit Court of Appeals threw it out, finding the Phelpses' rhetoric to be "utterly distasteful" yet constitutionally protected.
According to the respected SCOTUSblog, the issue in Snyder v. Phelps is "the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting."
Snyder's lawyers are arguing that the appeals court "determined that the freedom of religion and peaceful assembly is subordinate to freedom of speech," choosing "one individual's First Amendment rights over those of another."
The Supreme Court ruled in 2004 — in language that became part of Kansas' funeral privacy law — that "family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek in accord to the deceased person who was once their own."
Yet as a rule, courts tend to find that the First Amendment's protection of the freedom of speech and the right of assembly extends to those with vile views. University of Kansas constitutional law professor Stephen McAllister has written, "The Supreme Court has been very reluctant to conclude that words cause legally compensable harm."
That thinking may prevail again this time. If so, it would compound the grief of families of these fallen troops as it handed the Phelpses a legal victory. But it also would underscore the strength of the First Amendment.