Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church

Most Americans know about the Westboro Baptist Church – it is a small cult made up of complete lowlives who protest at soldiers’ funerals – claiming that each American soldier who dies is proof that god is punishing America for its tolerance of homosexuality.

Albert Snyder, the father of slain Marine Matthew Snyder, sued Westboro for defamation, invasion of privacy and intentional infliction of emotional distress. I see where he is coming from. However, if you believe in the First Amendment, you must tolerate even this seemingly intolerable behavior.

The Baltimore Sun reports:

The case tests the limits of the First Amendment right to free speech.

U.S. District Judge Richard D. Bennett instructed jurors at the start of testimony Tuesday that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements. Bennett said the jurors must decide “whether the defendant’s actions would be highly offensive to a reasonable person, whether they were extreme and outrageous, and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.” (source)

If the Baltimore Sun’s reporting is accurate, and Snyder prevails, the 4th Circuit Court of Appeals should reverse without question. The First Amendment has no exception for “vulgarity,” nor for “offensiveness,” nor for “shocking statements.” Either the reporter misquoted him, or Judge Bennett needs a remedial course in Constitutional Law. I find it difficult to believe that any second year law student would make such a blatantly erroneous statement – and even more difficult to believe that a sitting federal judge could.

Even without such a blatantly erroneous statement to the jury, if this case results in a Snyder victory, the 4th should overturn any award. Westboro’s conduct, while disgusting, is clearly within the protections guaranteed by the First Amendment. They are protesting on a matter of political and/or religious importance. As insane and cruel as they may be, the First Amendment applies to them too.

Let me be clear – I hate Westboro Baptist Church, and I truly hope that every member of that “congregation” catches a disease that makes their vocal cords turn to stone. Furthermore, I hate their “message” as much as anything I have ever heard. I sympathize with Mr. Snyder, and had I been present at that funeral, I likely would have marched right over to the Westboro congregation, and I would have happily gone to jail for busting their “Pastor” one right in the teeth. Not very nice of me, not very Buddhist of me, but I probably would have done it.

However, I love my country and my Constitution more than I hate Westboro Baptist Church.

If Snyder prevails, it will mean that if a political protest is deemed offensive enough, it can result in civil liability – thus creating a chilling effect and making others reluctant to exercise their legitimate right to free speech. There are costs and benefits associated with living in a free society, and tolerance of the Westboro Baptist Church’s protests is one of the costs.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943). Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be. A belief may be pernicious — the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.

The ideas of the Klan may be propagated. Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969). Communists may speak freely and run for office. DeJonge v. Oregon, 299 U.S. 353, 81 L. Ed. 278, 57 S. Ct. 255 (1937). The Nazi Party may march through a city with a large Jewish population. Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S. Ct. 291, 58 L. Ed. 2d 264 (1978). People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. Lebron v. Washington Metropolitan Area Transit Authority, 242 U.S. App. D.C. 215, 749 F.2d 893 (D.C. Cir. 1984) (Bork, J.). People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke the constitutional amendments granting the vote to blacks and women. They may do this because “above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas . . . .” Police Department v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972). See also Geoffrey R. Stone, Content Regulation and the First Amendment, 25 William & Mary L. Rev. 189 (1983); Paul B. Stephan, The First Amendment and Content Discrimination, 68 Va. L. Rev. 203, 233-36 (1982).

American Booksellers Ass’n. v. Hudnut, 771 F.2d 323, 328 (7th Cir. 1985)

If the Courts sustain the notion that Westboro’s actions may be a proper predicate act for the imposition of civil liability, then the government will, through its courts, have placed its imprimatur upon the censorship that Snyder (sympathetically) seeks.

That all said, I don’t think that the families of fallen soldiers are without some kind of remedy or protection. Westboro has put its idea into the marketplace of ideas, and the marketplace has roundly rejected Westboro’s hate speech. Better yet, Westboro’s actions have provoked a counter-protest group — the Patriot Guard Riders – a group of bikers who are as appalled by Westboro’s tactics and message as I am. The Patriot Riders show that the marketplace of ideas works.

Before wrapping up, I must salute my First Amendment Lawyer’s Association brother, Jonathan Katz, for his service as Westboro’s counsel. I have not yet discussed the case with Katz, but I presume that he has no more love than I do for Westboro’s message of intolerance, nor for their cruel and tasteless methods. Nevertheless, the test of your love for this country is when you will stand up for those opinions that you despise. He, like David Goldberger (the Jewish attorney who defended the Nazis in their bid to march in Skokie, Ill.) is a true patriot. Katz is protecting all of our freedom when he swallows what must be a bitter pill when he advocates on Westboro’s behalf.

Between Katz and the Patriot Riders, I think that our profound national commitment to free speech is in good hands.