My Old Kentucky Homesite

Snyder v. Phelps (and You and Me)

Posted by Larry Wallberg on 03/09/2010

If you don’t want to see the First Amendment debased little by little until it grows meaningless, you have to be willing to fight vociferously for the rights of citizens to say and print things that you find hateful.

So yesterday, when the Supreme Court announced that it would hear arguments in Snyder v. Phelps, I decided that it was time to write about the case. If I had a larger forum, I’d broadcast my opinion to the world, but, as it is, I can only post it here on my blog. Imagine me shouting, however.

Fred Phelps is the “pastor” of the Westboro Baptist Church, a hate group by any definition. Most of Phelps’s flock are his family members, which might explain why they travel with him from their base in Topeka all over the country to help spread the Bad News. Westboro’s particular way of doing that is to picket funerals of American soldiers. The signs carried by the church members advertise Christ’s love through slogans like: God is Your Enemy, Thank God for Dead Soldiers, and God Hates Fags. Phelps’s message is that his god aids in the killing of our fighting forces because America is too tolerant of its sinful homosexuals.

A few years ago, Albert Snyder, father of a dead Marine whose funeral had been picketed by the Westboros, filed a lawsuit against Phelps and his church. At the time of the funeral, Snyder wasn’t even aware of the “rally” going on nearby; he learned of it later, by watching TV news reports. Thereafter, he found the church’s Web site and began to read the awful things that Phelps had written. He was sickened, he said, and decided to sue.

Among other things, Snyder claimed that his privacy had been invaded. But much of his case focused on the mental and emotional harm that had been done him by Phelps’s speaking and writing, and how his hurt feelings resulted in physical symptoms. The plaintiff won his case, and a Baltimore jury awarded him nearly eleven million dollars, the far greater portion of which was for “punitive” damages. The jury was eager to punish Phelps for expressing his odious views.

The case worked its way through the legal system. One appellate court cut the damages in half, but that still was going to cost the Phelpsians five-and-a-half million bucks for exercising their First Amendment right to speak. The Westboro Church would face financial ruin.

A few wrong-headed atheists were thrilled that an ultra-right-wing religious propagandist might soon be poor enough to have to convert his soapbox into an article of clothing. Others were horrified by the free-speech ramifications. (If you’re interested in hearing a group of atheists —including me in my ex-persona — give fuller details of the case and discuss their views, listen to this podcast.)

The award stood until the U.S. Court of Appeals for the 4th Circuit reversed the verdict.

Of course, Snyder’s lawyers appealed that decision to the Supremes, the only judges with jurisdiction to overturn the Fourth Circuit. What’s chilling is that at least four justices — the number required to “grant a writ of certiorari,” or, in plain language, agree to hear the case — have decided that a frivolous lawsuit, brought in flagrant disregard for the principle of Free Speech, is worthy of being argued in the nation’s highest court.

I’m guessing that the case will get tons of coverage in the media, since it has the elements of a great story: our country’s knee-jerk adoration of all things military, most citizens’ unquestioning belief in Christianity (even the brand in which the main mission is to spread hatred), and America’s homophobia.

I’m further guessing, but I hope I’m wrong, that the principle of Free Speech, the only actual question on which this case ought to be based, will get lost in most of the intentionally ignorant, sensationalistic, reporting.

It’s important that all bloggers, not just those of us in the Atheosphere, keep that principle in mind. If Phelps loses, so will we all.

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27 Responses to “Snyder v. Phelps (and You and Me)”

  1. Sir, if I may so Infer… is it then, your Dogma to profess that Christianity or perchance Religion Generally be Unmitigated Evil?

    Martin Luther King Jr.? Gandhi? Much more could be said…

    And so to Me it seems that all Human business, which includes Religion, is rather Grey…

    Two notable exceptions: it seems to me that the Art of Silly Poesy and Tiddlywinks have been unmitigated goods.

  2. Percy:
    I needs must answer you in verse,
    Although your question’s feisty.
    It’s hard to think of something worse:
    Our nation’s far too Christ-y.

    Although the evil’s not unmitigated,
    Many cases must be litigated.

  3. the chaplain said

    What’s chilling is that at least four justices — the number required to “grant a writ of certiorari,” or, in plain language, agree to hear the case — have decided that a frivolous lawsuit, brought in flagrant disregard for the principle of Free Speech, is worthy of being argued in the nation’s highest court.

    The current court contains too many clowns for my comfort.

  4. yunshui said

    Snyder’s lawyers appealed that decision to the Supremes

    Not to mention 60s Motown groups.

  5. Chappy:
    Those clowns, as you call them, have the authority to aim their custard pies at all of us.

    But I wouldn’t make any assumptions about which four — or more — justices voted to hear the case. It could even be, although I doubt it, that some of them want to use this case to clarify a Constitutional point, thereby strengthening Freedom of Speech. But, as I said, I’d be surprised.

    Yunshui:
    If I had to pick the name of a group to represent this court, I’d choose Little Antonin and the Imperials.

  6. the chaplain said

    It could even be, although I doubt it, that some of them want to use this case to clarify a Constitutional point, thereby strengthening Freedom of Speech.

    That thought occurred to me, too. It would be nice if it were so. In the meantime, I’ll bring an extra towel for you.

  7. Chappy:
    In the meantime, I’ll bring an extra towel for you.

    Alternatively, you could just hand me a fork and a cup of coffee.

  8. I’m glad you brought this up. You actually bring up a couple of issues I think are important.

    First, Fred Phelps is a sick person. I heard an interview on a podcast with a Phelps son. Apparently, Fred Phelps was even more abusive and vile to his own family than he is to others. He is one of the most hatable (is that a word?) people in existence.

    Second, Albert Snyder has suffered a loss that many of us don’t even want to contemplate. A young marine was cut down in his prime while in service of his country.

    I claim that this is exactly the kind of case that tests our committment to the First Amendment. Anyone can defend the rights of the cute and fluffy, but who will stick his neck out for an twisted evil asshole? I have a sibling in law enforcement. She rails against the courts making all sorts of allowances for the accused. I have wasted too much breath attempting to explain that these protections are in place not for these people. Rather, they are in place for everyone. There is an old saying that you can tell a lot about the humanity of a nation by looking at its prisons. I would say that you could tell a lot about a nation’s commitment to free speech by its defense of the despicable. I could march around New York in an SS uniform with a sign “Jüden Weg!” without fear of arrest. On top of that, the perpetrators of the ass-kicking I received would be subject to criminal charges. Try doing that in Veinna, Amsterdam, or any city in Europe.

    This lawsuit should have been dismissed with prejudice by a lower court.

  9. Well-versed, good Sir,
    I am nor Irked
    Nor vexed nor neither
    Hexed nor cursed.

  10. As one of the original “wrong headed (a moniker I humbly accept, BTW) atheists” (with my atheism having, really, no relevance to the matter), I was going to mention this on my blog, so I’m glad you did so for me. My intention was to offer a mea culpa for my past position.

    I think I was so caught up in the glee I felt at seeing a potential bankruptcy and silencing of these unsympathetic “Christians” I lost sight of the effect it would have on the rest of us, including me, a member of an odious minority. I still won’t shed any tears for them if the judgment is upheld, but I will shed a few for the 1st Amendment.

    Now, as to the judgment, I think the “Supremes” (and I hate these pop culture analogies applied to the court, but that’s just the lawyer in me – I still have a lot of respect for the institution) will strike it down. They really have no choice. If they rule that a single person’s emotional reaction and right to grieve trumps the 1st Amendment, they’ll be swimming upstream against 200 years of jurisprudence. Say what you want about their political leanings and political philosphy, they are still very well educated, well trained, intelligent lawyers there, who would have to ignore all that education and training, and shed their intelligence, to do so.

    Think what you like about
    Scalia, Roberts and Alito.
    When push comes to shove,
    The judgment they’ll veto.

  11. MacNutz said

    Phelps is a detestable individual and his actions, picketing funerals,(any funerals) offends ones sense of decency. But these constitutional protections of the right to free expression must be protected. Even when we hate the bigoted, mean spirited, loud mouth bit of human excrement in question.

    Such reinterpretations of the constitutional questions are fraught with real danger. Curtailing universal rights to suppress one particular pain in the ass or any particular ideology is a two-edged sword that can came back to cut in unexpected ways.

    Giving the state the ‘right’ to censor is not a good idea. How would we feel about such a precedent if Palin became the President?

  12. Des:
    This lawsuit should have been dismissed with prejudice by a lower court.
    I agree. But instead, it was heard with prejudice.

    Percy:
    O, excellent response, good Sir.

    SI:
    My intention was to offer a mea culpa for my past position.
    Not necessary. Since atheists have no Big Boss to account to, we’re free to change our minds on any issue after examining further evidence.

    I agree with you that the Justices are all well educated, well trained, intelligent … blah, blah, blah. I have a lot of respect for the Court — in general. But we’ve seen some of their contorted interpretations of the First Amendment. The decision in Morse v. Frederick (the “Bong Hits for Jesus” case) is a good example. (To refresh your memory, you can read these two old posts.)

    So I’m not confident that they’ll affirm the Fourth Circuit’s decision. But I hope you’re right, and I’m wrong.

  13. Mac:
    Giving the state the ‘right’ to censor is not a good idea. How would we feel about such a precedent if Palin became the President?

    Augggh! That scary thought hadn’t even occurred to me. You’re absolutely right. (And I don’t even want to think about the kinds of judges she’d appoint to the Federal courts.)

  14. If she even knows what a judge is or does…

  15. Well it’s sad that this is being heard, because I don’t see why it should be. The circuit court seems to have gotten it right. The only positive might be that as a result of this, it might put to rest ever being able to seek compensation for hurt feelings from what someone else said. That would be nice.

    No one has the right to not be offended.

  16. Philly:
    No one has the right to not be offended.

    Are you saying that we Americans weren’t endowed by the Creator with the rights to Life, Liberty and the Pursuit of Niceness?

  17. Fuck that

  18. Helena said

    I believe in the first amendment. I also believe in decency. Sadly Phelps abuses both.

  19. srsny said

    You anticipated my comment on Morse v Frederick.

    The cases, of course are substantially different. The Morse case involved “school” speech, which has precedents that sustain the school’s right to regulate. I disagree that this should have fallen under the aegis of school speech because of the circumstances surrounding the kid’s attention-getting protest stunt. I’m no lawyer, but I have always maintained that the kid’s lawyers should have argued the case differently. But there it is; the school argument won out.

    Although I haven’t really had much time to take in all of the details of Snyder, re-reading Alito’s concurrence in Morse (which was joined by Kennedy), gives me hope of a different outcome:

    “I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.”

  20. Are you saying that we Americans weren’t endowed by the Creator with the rights to Life, Liberty and the Pursuit of Niceness?

    Sure we are. It’s just that one should not be surprised to be de-pantsed during said pursuit. Is it just me, or does “The Creator” sound like a comic book villain?

  21. Damn it, HTML is an unforgiving beast.

  22. Helena:
    I’m letting your comment stand, even though it’s a blatant ad. (Hell, I even fixed the sloppy HTML.) I’d like my readers to see how an alleged news — ha! — site has already mischaracterized the facts of Snyder v. Phelps:

    An emotionally charged case pitting freedom of speech and religion against the right to privacy.

    Check out the teenager who gives the report. She’s someone who sure seems to have a lot of authority on Constitutional issues, huh?

    Srsny:
    You’re right about Morse v. Frederick; it shouldn’t have been argued or decided as a “school” case. If I remember the oral argument correctly, I believe that the lawyer for Frederick tried to make that point a few times. But the Justices kept bringing him back to “students.”

    As far as Snyder v. Phelps: We’ll just have to wait until next year to read the decision and the inevitable dissents (regardless of which way it goes).

    Des:
    How could the Creator be a comic book villain when he created everything, including comic book villains, as well as the very concept of comic book villains? After all, if it weren’t for the Prime Mover (of the Funny Papers), all drawn characters would be either humorous animals or wise-cracking kids.

    WordPress allows the owner of a blog to edit comments, so I was able to tame your beast for you.

  23. srsny said

    By the way, you may recall that some religious organizations filed amicus briefs in support of Frederick, because “Jesus” was part the challenged speech. The really interesting thing about that case is that the kid didn’t intend his speech to be about drugs OR Jesus. He had seen the phrase on a bumper sticker and chose it for its outrageousness – just ot prove he had the right to freely say anything. Unfortuneately, he was wrong 5-4. A few months earlier and he would have had O’Connor on the court and, I suspect, a different outcome.

  24. Srsny:
    Yes, I remember that some major Christian organizations (including those affiliated with Pat Robertson and James Dobson) supported Frederick. It wasn’t so much because Frederick’s banner mentioned Jesus; it was really because they wanted students to have the right to use pamphlets, signs, and mottoes on clothing to spread religious messages.

    So a decision for Frederick may have made it easier for ultra-religious students to wear Christian propaganda on their hats and T-shirts. Personally, I don’t care for that kind of message, but … why shouldn’t students have the right to express it? In what way is a “Rah-Rah Jesus” lunchbox any different from an “I Love Cookie Monster” lunchbox?

    It’s hard to say whether O’Connor would have made any difference in the “Bong Hits 4 Jesus” case. I don’t remember her as being a swing vote for the civil libertarian viewpoint when it came to Freedom of Speech or Freedom of the Press.

  25. thewife08 said

    I agree with you that the First Amendment, or any Amendment, could conceivably be stripped of any authority if we allow it but I don’t feel the First Amendment, in this case, is being devalued by Mr. Snyder’s case.

    Imagine yourself the parent of a twenty year old man who has just been killed. Now imagine for no other reason then because he chose to serve this country as a Marine a hate group is protesting his funeral. Calling his death a just action by God. The hateful messages being screamed across the cemetery while you are lowering your child’s casket into the earth. You will never get to see your child’s face or smile again except in photographs. You will outlive your child.

    Your child decided to defend the First Amendment and the rest of the Constitution when he enlisted with the military. Does he not deserve an honorable and peaceful funeral? Should his body be lowered into the earth while a group of selfish, ignorant, bigots scream and celebrate his death? The same people who have never and will never have their family member serve in the military and defend the Constitution they so rely on?

    There is a large difference between being offended by someone’s message and being harassed and targeted because your son or daughter made a life choice to serve this country. If the Westboro Baptist Church wants to hold a protest in the middle of Times Square and preach their message of hate, go for it! That is what the First Amendment protects. But it should not be manipulated into a green light and protection to harass mourning families and publicly celebrating the sacrifice that these soldiers have made.

  26. Thewife08:
    Your child decided to defend the First Amendment and the rest of the Constitution when he enlisted with the military.
    Yes, that’s definitely the first thing that goes through an enlistee’s mind: “I think I’ll defend the First Amendment.” You’re spouting slogans.

    But let’s say that your hypothetical freedom-loving teenager does join the military because of his or her great respect for our Constitution. Can you tell me how fighting in the Middle East has anything whatsoever to do with protecting that document — or the principles to which it makes reference?

    I’m not saying that citizens should not appreciate the sacrifices that servicemen and servicewomen make. But, believe it or not, Americans can’t be forced to appreciate those sacrifices, nor can they be penalized for not joining in the general Fox-News rah-rah.

    The members of Westboro Baptist Church are trying to be as offensive as they can. Most of us find them disgusting. But that’s their right, which we must defend if we’re really patriots and not just establishment puppets mouthing empty homilies.

    There is a large difference between being offended by someone’s message and being harassed and targeted …
    Says who? Not the First Amendment, surely.

    The Founders understood that citizens of a free country should have the absolute right to harass (obviously, we’re speaking in the non-physical sense) and target those governmental institutions with which they disagree. That’s the very kind of speech the First Amendment was intended to protect.

  27. There are laws in place concerning the minimum distance you’re allowed to protest a funeral from apparently, and the Phelps clan is VERY good at obeying those kinds of laws. Furthermore, the family who sued admitted that they weren’t aware of the protest at the time of the funeral. It wasn’t until afterwards watching the news that they saw it, so I don’t see your claim of harassment. I also have to object to your special pleading for soldiers and the attempt to use emotional manipulation in your argument, but hey, that’s your choice for how best to exercise your First Amendment right.

    I will say that it’s those of us who don’t fall victim to such pleas and steadfastly remain objective when reviewing stories like this and have the courage to defend even the most vile people’s right to the First Amendment, we are the ones who have decided “to defend the First Amendment and the rest of the Constitution”.

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