Thursday, October 7, 2010

First, You Hate

Dahlia Lithwick of Slate reports on the Supreme Court hearing the case of Westboro Baptist Church vs. the family of a dead soldier.

The facts of Snyder v. Phelps are probably already familiar to you, which familiarity assuredly delights the members of the tiny Westboro Church. The Phelps clan stages protests at, among other things, military funerals, to make the point that American soldiers are dying because of American tolerance of homosexuality and other assorted sins. Albert Snyder prevailed at a jury trial on claims that the Phelps demonstration at his son’s funeral was an invasion of his privacy and an intentional infliction of emotional distress. He won almost $11 million in damages; an award that was halved by the trial court judge and then overturned completely by the 4th Circuit Court of Appeals, which determined that the Phelps protest was protected free speech under Supreme Court precedent. The Supreme Court agreed to take the case. Everyone in America wondered why.

Well, wonder no more, my friends. It appears that at least a few of the justices really, really, really just hate the Phelps family and its manner of protest, and they might even be willing to whip up a little new First Amendment law to prove it.

The argument can be made that we already have a whole slew of restrictions on the First Amendment; libel and slander laws have withstood challenges, as have public persons being subjected to parody and scorn (i.e. Larry Flynt vs. Jerry Falwell). And then there are the old standards such as yelling “Fire!” in a crowded theatre (unless there really is one), “fighting words,” incitement to violence, George Carlin’s famous seven words, and child pornography. An argument can be made that what the Phelps clan is doing falls under those exceptions and therefore the judgment against them should stand. And I suppose if you really wanted to go out on a limb, you could make the case that the Phelps’ argument that God hates fags or anyone is unproven; first they have to prove that there’s a God and that it is capable of hatred, and they are the legitimate purveyors of that message.

In one sense I would like nothing better than for the Supreme Court to rule 9-0 that the Snyder family is entitled to the multi-million dollar judgment and that the tiny little group that make up those pathetic people of Westboro Baptist Church are driven out of sight and never heard from again. But that’s the visceral response, and the law and the Constitution are the bulwark against such responses. There’s no telling how the Court will rule; they’re not beyond coming up with some creative interpretations of the Constitution that seem to fit into the category of judicial activism; Citizens United and Bush v. Gore being two examples, and there are those who say the same about Roe v. Wade and Brown v. Board of Education. Ms. Lithwick sums it up pretty well:

The headline writers are going to say that the justices “struggled” with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that’s why we needed a First Amendment in the first place.