Mark My Words: Defending the Indefensible

In a day and age where Americans of opposing political factions will literally argue about the weather, Fred Phelps and his Westboro Baptist Church have the distinction of being one of the few entities that elicit bipartisan disgust and revulsion.

In March of 2006, Fred Phelps and the rest of his attention-craving troglodytes packed onto a plane and made their way to Maryland. They were there to protest the funeral of Lance Corporal Matthew Snyder, a solder killed in Iraq, attributing his death to the “evils” of permitting homosexuality. Matthew’s father filed suit against Phelps, alleging intentional infliction of emotional distress. Phelps responded by claiming a First Amendment right to protest in accordance with local ordinances.

Yesterday, the Supreme Court handed down an 8-1 decision holding that as deplorable as Phelps and his message are, America’s constitutional commitment to free speech required that the Court come down in his favor (shout-out to fellow writer Sam Hamilton for taking this stance from the get-go). The outcome, while stomach-turning to any decent human being, was the absolutely correct decision and should be recognized as a credit to our national commitment to the importance of freedom of speech and thought.

Writing for the majority, Chief Justice Roberts noted that “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” and that, at its core, “the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”

The Justices held their noses in making their decision, pointing out that while “Westboro believes that America is morally flawed, many Americans might feel the same about Westboro.” That said, while the Court recognized that while “Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible,” its right to do so was a “freedom protected by the First Amendment.”

Chief Justice Roberts eloquently concluded by stating that “[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain.” However, he cautioned that, “we cannot react to that pain by punishing the speaker. 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.”

The stark irony of the case is that the freedom of speech that the Phelps family so vigorously defended was one of the very freedoms Lance Corporal Snyder enlisted to protect. But that is the nature of our free system. With freedom comes the necessity to tolerate those who would seek to abuse it. Our freedom of speech is not a privilege nor should it be. It is a right guaranteed to all and the Supreme Court should be applauded for defending it, even in the ugliest of situations.

Photo CreditWikimedia Commons

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Mark Kogan

Mark is a lawyer and Mic contributor living in Washington, D.C.

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