Westboro Baptist case: Free speech is a right, but not the only right: Hateful speech must be allowed, but what about its victims?

Published in The Baltimore Sun, March 7, 2011.

We can all understand a parent’s grief at the sudden death of a child. One parent who should be in our thoughts is Albert Snyder. His son, Marine Lance Cpl. Matthew Snyder, was killed in Iraq in March 2006. Last week, the Supreme Court issued a ruling in a case revolving around the fact that Matthew’s funeral, held at St. John’s Catholic Church in Westminster, was utilized by members of a Kansas church as a forum to publicize its beliefs, among which is the inclination to give thanks for dead soldiers as a manifestation of God’s hatred for the United States.(That cruel dictators, violent drug dealers, child pornographers, and other assorted miscreants the world over are able to maintain lavish and privileged lifestyles as a result of their ill-gotten gains, without disruption by the Almighty, remains a theological mystery. Nevertheless, for the church members, the divine denunciation of homosexuality is palpably clear.)

To publicize its message and gain notoriety, the Westboro Baptist Church has adopted a policy of picketing at military funerals. At the Snyder funeral, church members, maintaining a distance designated by the police, carried signs, among which were slogans that read “God Hates the USA,” “Fag Troops” and “You’re Going To Hell.” Following the funeral, the church published references to Matthew Snyder’s death on its website, asserting that Albert Snyder and his ex-wife had “taught Matthew to defy his creator,” “raised him for the devil,” and “taught him that God was a liar.”

Albert Snyder filed a federal suit against pastor Fred W. Phelps and other church members. He claimed damages for emotional distress and exacerbation of his diabetes and depression arising from the actions at the funeral and the website publication, all of which had prevented him from going through the normal grieving process for his lost son. In October 2007, a jury in Baltimore awarded Mr. Snyder $2.9 million in compensatory damages and $8 million in punitive damages. The court reduced the punitive award to $2.1 million, for a total award of $5 million.

Last year, an appeals court reversed the jury award on the grounds that the actions of the church were absolutely protected under the First Amendment. The Supreme Court has now affirmed the Fourth Circuit’s ruling, holding that “Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. … Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”

The court noted that Maryland now has a statute restricting funeral picketing, but it was not in place at the time of this incident. Perhaps the jury in Baltimore was trying to impose a restriction of its own. Its verdict was a referendum of sorts as to the dignity that it felt should properly be bestowed on the funerals of our fallen soldiers, and that should apply to statements made on the Internet apart from the funeral itself. The Supreme Court opinion does not meaningfully address Westboro’s Internet publications and the power of the electronic media to distribute hateful messages that cause direct emotional harm to specific individuals whose dead loved ones are used as the target for vitriol.

We live in an age of immediate and far-reaching transmission of electronic information, which offers limitless outlets for the debate of issues and expression of beliefs that are cornerstones of our freedom. Cyberspace and the airwaves are filled with imaginative and hyperbolic rhetoric that provokes discussion and debate, as well as with repugnant and hateful speech that defames, incites outrage and fosters abasement.

It is advisable to adopt an armor of thick skin when participating in a democracy. But it does not follow that a free society must necessarily be cruel. The social networking humiliation that lead to the suicide death of Rutgers University freshman Tyler Clementi pointedly reveals the destructive power the Internet has given to cyber bullying and utter disregard for personal privacy and its potential to cause needless suffering and grief.

Perhaps our society will recognize that all of the vehicles that make possible the instant mass proliferation of views and opinions sufficiently ensure the free discourse that is the heart of our republic — and thereby permit us to grant the families of our war dead the small privilege of an of opportunity to say goodbye in solitude and peace. Perhaps we can ensure that their funerals not serve as media opportunities for any agenda. And that people like Albert Snyder not lose their lone opportunity for meaningful closure. It would be small compensation for the price they have paid.

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