Exploring the Outer Limits of the First Amendment

The Westboro Baptist Church demonstrates a unique ability to offend.Do demonstrations like this at private funerals really deserve the public’s absolute protection?

I listened yesterday to an excellent talk at Dartmouth’s Rockefeller Center by Michael McConnell, constitutional law professor at Stanford, former appellate court judge on the 10th Circuit, and onetime Supreme Court frontrunner, whose subject was “Whatever Happened to Freedom of Association?” — a reflection on the erosion of First Amendment freedoms. McConnell focused mainly on his experience representing the plaintiffs in Christian Legal Society v. Martinez. Look out in the coming days for Sterling Beard’s account of the talk, which ought to appear soon on Dartlog. McConnell made a compelling case that the direction of American law in the past half-century has been to impose public norms on private (usually religious) groups, diminishing the difference between what is public and what is private, and infringing on Americans’ First Amendment right to freely associate. 

McConnell’s lecture was fortuitously timed with national events. Today, the Supreme Court handed down another in a string of rulings that pushes for a quite liberal definition of the First Amendment. Quite the reverse of McConnell’s argument, if the Court’s opinion in Snyder v. Phelps is any indication of the legal direction of “free speech,” then we certainly find ourselves in the midst of an era where the public sphere is, more and more, forced to accede to the increasingly bizarre and perverse First Amendment claims of private interests — interests that wrongly take advantage of our liberal square to inflict misery on others.

Snyder v. Phelps is an illustrative case. The infamous Westboro Baptist Church, which has established itself as one of the most offensive organizations in the US today, has protested at the funerals of hundreds of fallen American soldiers and Marines. I saw an instance of this first-hand in high school when the “church” — led by the charlatan Fred Phelps and his family — showed up to protest the memorial service of an alumnus, Captain Jonathan Grassbaugh of the 82nd Airborne, who served with distinction (winning a Bronze Star) in Iraq before being killed by an IED. They showed up with the usual signs condemning “fags” and praising IEDs, and milled around on the street outside. The intention of the protestors clearly wasn’t to strike up a political discussion: it was to draw attention to themselves and to their cause by capitalizing on the private grief of Captain Grassbaugh’s family and friends. 

The parents of Marine Lance Cpl. Matthew Snyder endured similar treatment during their son’s funeral in Maryland. Phelps and Co. brought along signs that read “God Hates Fags” and “Fag Troops,” along with one which depcited two men engaged in anal sex. Afterwards, they posted a lengthy screed on the internet, which read in part:

God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver!  In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD!  You did JUST THE OPPOSITE—you raised him for the devil. Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery.  They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave  the Roman Catholic monster they condemned their own souls.  They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

In light of this abuse, Snyder’s father decided to fight back. He sued Phelps and the Westboro Baptist Church on the basis of “intentional infliction of emotional distress” (IIED). As Justice Alito noted in his lone Snyder v. Phelps dissent, the Court has ruled in the past that in cases of IIED — which provides for a very strict and hard-to-meet defintion of emotional distress — First Amendment free speech rights can be curtailed. The law requires that the conduct of the defendent must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

What is interesting is that the WBC’s legal team did not challenge the plaintiff’s contention that the church’s behavior was emotionally distressing and went “beyond all possible bounds of decency.” But the WBC argued that it was entitled to its speech anyway. A resounding majority of the Court (8-1) agreed with the church. The Court’s ruling concluded that despite the WBC’s “negligible” contribution to public discourse and the evidently distressing nature of its speech, 

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.  That choice requires that we shield Westboro from tort liability for its picketing in this case.

The Court called its ruling “narrow,” but it seems to this layman like a fairly important precendent. Interpreted liberally, it appears that the government may set no bounds on indecent attack “speech” whatsoever. Under the Court’s understanding, the direct and personal verbal assaults of the WBC refer to matters of “public import.” With an interpretation like that, you could construe almost any verbal assault — no matter how vicious or personal — as a contribution to the public discourse, however “negligible.”

This is just the most recent in a string of decisions that have very broadly expanded the power of the First Amendment. Citizens United v. Federal Election Commission struck down the legality of McCain-Feingold campaign finance regulations, allowing corporations the right to exercise free speech by permitting unlimited corporate spending on political advertisements. In last year’s United States v. Stevens, the Court struck down an act of Congress that banned the production and distribution of “crush” films — videos that appeal to sadists and sexual deviants who enjoy watching stiletto-heeled women torture, crush, and kill small animals underfoot — on the grounds that the congressional ban was an “over broad” assault on First Amendment rights. 

Although the Citizens United case narrowly broke down along obvious partisan lines (conservative jurists voting to strike down McCain-Feingold, liberals voting to uphold it), both Snyder v. Phelps and United States v. Stevens were nearly unanimous decisions. In the latter cases, only one jurist voted for a more restrained First Amendment right to free speech — Justice Samuel Alito. 

Alito’s written dissents on both the Snyder and Stevens cases have argued eloquently for a more humane vision of the state, one that vigorously protects the innocent. His Snyder dissent concluded reasonably that a free political regime does not require the libertine public acceptance of all “speech.” Indeed, the free public square sometimes it demands that speech be restricted. He writes, “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.” In Alito’s U.S. v. Stevens dissent, Alito rightly compared crush films to child pornography, and mounted a strong defense of Congress’s action.

So three cheers for Alito, who is refreshingly out of step with the Court’s overall tendency toward a completely unlimited and unrestrained First Amendment. The Court’s ideological attachment to free speech sometimes seems to cloud common sense: our society cannot afford to countenance any “right” for fame-seeking protesters to brutally mar a grieving family’s memorial service any more than it can afford to permit individuals to make a profit off of the despicable portrayal of animal suffering. Permitting all speech, no matter how hateful or personally directed, conduces to a kind of disorderly jungle where the public square is dominated by fringe elements. We already have enough of that.

Charles S. Dameron