{"id":1673,"date":"2011-03-03T05:00:23","date_gmt":"2011-03-03T12:00:23","guid":{"rendered":"http:\/\/fromlaw2grace.com\/?p=1673"},"modified":"2011-03-03T05:00:23","modified_gmt":"2011-03-03T12:00:23","slug":"westboros-free-speech-win-repugnant-yet-right","status":"publish","type":"post","link":"https:\/\/fromlaw2grace.com\/?p=1673","title":{"rendered":"Westboro’s Free Speech Win: Repugnant Yet Right"},"content":{"rendered":"

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and\u2014as it did here\u2014inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.\u00a0 As a Nation we have chosen a different course\u2014to 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.” (Majority Opinion of the Court, delivered by Chief Justice John Roberts, <\/a>in\u00a0<\/em>ALBERT\u00a0SNYDER, PETITIONER v. FRED W. <\/strong>PHELPS, SR., ET AL., <\/strong>March 2, 2011)<\/em><\/p><\/blockquote>\n

In an opinion delivered by Chief Justice John Roberts, an 8-1 majority of the United States Supreme Court\u00a0handed Westboro\u00a0“Baptist Church” a victory in a much-anticipated First Amendment ruling that has both Freedom of\u00a0Speech and Freedom of Religion implications.\u00a0\u00a0I\u00a0expected a more closely divided\u00a0Court. I am surprised that eight Justices “sided” with Westboro\u00a0(only Justice Samuel Alito dissented).\u00a0<\/p>\n

I placed “sided” in quotes because most people outside of the members of Westboro\u00a0“Baptist Church” (Fred Phelps, Sr. and his immediate family members)\u00a0do not ever\u00a0want to “side” with them on any issue.\u00a0 The Court itself, as Chief Justice Roberts noted with just a hint of sarcasm, did not necessarily find itself in agreement with Westboro’s philosophy:<\/p>\n

“Westboro\u00a0believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro\u2019s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible.” (Majority Opinion, page 14<\/a>)<\/em><\/p><\/blockquote>\n

Negligible indeed.\u00a0 As a lawyer-turned-pastor, I find myself in somewhat of a quandary\u00a0regarding this particular case.\u00a0 As a pastor, I find Westboro’s\u00a0beliefs and actions\u00a0offensive and completely at odds with\u00a0the Word of God and with how I believe that Jesus would want us to act\u00a0.\u00a0 In every way imaginable, I believe that what Westboro\u00a0says and does — particularly with their picketing and protests at military funerals — is repugnant and reprehensible.\u00a0 I know that I should “love my enemies” (and Westboro is an enemy of Christ), but just like with my feelings towards Bill Maher, I find it difficult to live up to the high standard that Jesus has called us to follow.\u00a0 Confession is good for the soul.<\/p>\n

My strong feelings against Westboro have only\u00a0been heightened since the death of my Music Pastor’s son, Garrett, in Afghanistan on December<\/a>\u00a027, 2010.\u00a0 He stepped on an IED\u00a0while out on patrol.\u00a0 While his family and friends can be comforted in the fact that he was a believer and is safe in the arms of Jesus, the vile hatred of the signs that Westboro\u00a0uses to intentionally inflict emotional distress on the grieving families of our slain soldiers is worthy of condemnation by all civilized people.\u00a0 I am thankful that the Westboro “crazies” did not show up in New Mexico to picket when this outstanding fallen American hero was laid to rest.<\/a><\/p>\n

The sad fact of the matter is that Westboro\u00a0proudly acknowledges that\u00a0their picketing of\u00a0military funerals (some 600 and counting)\u00a0is intended to inflict emotional distress on the families.\u00a0 Justice Alito, in his dissent, points out that Westboro\u00a0never disputed that fact in the case of the Snyder funeral:<\/p>\n

“Although the elements of the IIED\u00a0tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F. 3d\u00a0206, 216 (CA4\u00a02009). They did not dispute that Mr. Snyder suffered \u201c\u2018wounds that are truly\u00a0severe and incapable of healing themselves.\u2019\u201d Fi-gueiredo-Torres, supra, at 653, 584 A. 2d, at 75. Nor did they dispute that their speech was \u201c\u2018so 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.\u2019 \u201d Harris, supra, at 567, 380 A. 2d, at 614. Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.” (Justice Samuel Alito, Dissenting Opinion page 3<\/a>)<\/em><\/p><\/blockquote>\n

While I wholeheartedly agree with Justice Alito’s\u00a0opinion regarding the morality of Westboro’s speech and conduct, the lawyer that remains in me agrees with the legal reasoning contained in the majority opinion.\u00a0 While\u00a0Chief Justice Roberts\u00a0was careful to narrowly tailor\u00a0the majority\u00a0opinion to the specific facts of this case, I believe that the Court got it right this time.\u00a0 But, we must always remember, especially from a Christian perspective, that what is legal ain’t always right!<\/a>\u00a0<\/p>\n

The reason that Chief Justice Roberts and the majority got it right is because the First Amendment freedoms that we enjoy — particularly freedom of speech and freedom of religion (which often intersect) — must be protected against government encroachment.\u00a0 Even though Westboro’s speech and actions\u00a0 were “utterly intolerable in a civilized society,”<\/em>\u00a0we cannot begin to ban speech that we find personally offensive or outrageous (although reasonable “time, place and manner” restrictions are permissible — this issue was not before the Court).\u00a0 That standard, as the Chief Justice pointed out, cannot be the one that our society uses, even in extreme cases like Westboro:<\/p>\n

“The jury here was instructed that it could hold Westboro\u00a0liable for intentional infliction of emotional distress based on a finding that Westboro\u2019s picketing was \u201coutrageous.\u201d\u00a0 \u201cOutrageousness,\u201d however, is a highly malleable standard with \u201can inherent subjectiveness\u00a0about it which would allow a jury to impose liability on the basis of the jurors\u2019 tastes or views, or perhaps on the basis of their dislike of a particular expression.\u201d Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is \u201cunlikely to be neutral with respect to the content of [the]speech,\u201d posing \u201ca real danger of becoming an instrument for the suppression of . . . \u2018vehement, caustic, and sometimes unpleasan[t]\u2019\u201d expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270).\u00a0 Such a risk is unacceptable; \u201cin public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate \u2018breathing space\u2019 to the freedoms protected by the First Amendment.\u201d Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted).” (Majority Opinion, page 12<\/a>)<\/em><\/p><\/blockquote>\n

This case, in so many ways and for so many Christians (and others), is simply distasteful.\u00a0 On some level, no one really wanted to see Westboro\u00a0“win.”\u00a0 However, if the Court would have found that Westboro’s\u00a0speech was not\u00a0“protected” speech\u00a0and that they could not use the First Amendment as a shield or defense to a tort claim of intentional infliction of emotional distress, then the Court would have been permitting a back-door assault on free speech.<\/p>\n

Imagine the possibilities and the nightmare scenarios that would develop, especially for real churches that preach and teach on moral issues that others might subjectively\u00a0find offensive or outrageous.\u00a0 Lawsuits against churches would become the order of the day.\u00a0 Preach against homosexuality or Islam and suddenly find yourself sued for intentional infliction of emotional distress.\u00a0 Even if the lawsuit is eventually dismissed, churches (and individuals) could be bankrupted in defending against these causes of action.\u00a0 Churches would lose any First Amendment protections to speak out on the pressing moral issues of the day.<\/p>\n

Fortunately, the Court was unwilling to trample on the First Amendment, even when it would have been easy to trample on the rights of the vile group known as Westboro “Baptist Church”:<\/p>\n

“The \u201ccontent\u201d of Westboro\u2019s signs plainly relates to broad issues of interest to society at large, rather than matters of \u201cpurely private concern.\u201d Dun & Bradstreet, supra, at 759. The placards read\u00a0 . . .\u00a0 While these messages may fall short of refined social or political commentary, the issues they highlight\u00a0 \u2014the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy\u2014are matters of public import.” (Majority Opinion, page 8<\/a>)<\/p><\/blockquote>\n

In the end,\u00a0an overwhelming majority of the Supreme Court “sided”\u00a0with the First Amendment and the right of people and churches to speak (and preach)\u00a0freely on “matters of public import.”<\/em>\u00a0 That’s a good thing.\u00a0 If Westboro would have lost, then churches across America would find themselves under assault from the radical elements in this country who would love nothing more than to\u00a0shut down\u00a0debate on the great moral questions of our day.<\/p>\n

Westboro’s\u00a0victory, as repugnant as it may be to swallow,\u00a0is a victory for the First Amendment.\u00a0 Who should we thank for that victory?\u00a0 Certainly not Westboro, for there is absolutely nothing that anyone should ever thank them for.\u00a0 The Supreme Court?\u00a0 Perhaps, because they got the ruling right when it would have been so easy to get it wrong.\u00a0<\/p>\n

At the end of the day, we should probably be most thankful for the men and women of our Armed Forces who have sacrificed so much, including their own lives, so that we might continue to enjoy the precious freedoms this great country affords.\u00a0 At least that’s what I think.<\/p>\n","protected":false},"excerpt":{"rendered":"

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and\u2014as it did here\u2014inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.\u00a0 As a Nation we have chosen a different course\u2014to protect even hurtful speech on public issues…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[18,19,21,30],"tags":[214,407,3379,3380,427,3389,658,783,862,910,1021,1041],"class_list":["post-1673","post","type-post","status-publish","format-standard","hentry","category-freedom-of-religion","category-freedom-of-speech","category-freedoms","category-law","tag-chief-justice-john-roberts","tag-fred-phelps","tag-freedom-of-religion","tag-freedom-of-speech","tag-garrett-misener","tag-law","tag-military-funerals","tag-picketing","tag-samuel-alito","tag-snyder-v-phelps","tag-united-states-supreme-court","tag-westboro-baptist-church"],"aioseo_notices":[],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p1LP7G-qZ","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=\/wp\/v2\/posts\/1673","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1673"}],"version-history":[{"count":0,"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=\/wp\/v2\/posts\/1673\/revisions"}],"wp:attachment":[{"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1673"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1673"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fromlaw2grace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1673"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}