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Inside the First Amendment: The price of free speech can be steep

After the U.S. Supreme Court’s Westboro Baptist Church free-speech decision, many online comments critical of the 8-1 ruling did so in speech that also relied on First Amendment protection.

The situation was one more ironic twist in a case that pitted deep-seated sympathy for a grieving family against a basic constitutional right to speak out — even in a deeply offensive fashion — on matters of public interest.

On Wednesday, the Supreme Court upheld an appeals court ruling that threw out a $5 million judgment (originally $11 million) awarded to the father of a Marine, Matthew Snyder, who died in Iraq in 2006. Westboro church members, mostly members of the Phelps family from Topeka, Kan., picketed Snyder’s funeral in Maryland as they have done at military and other funerals for more than a decade, with signs that carry their anti-homosexual, anti-Catholic messages.

Negative reaction online to the Snyder v. Phelps ruling included emotional outbursts and wishes for lightning bolts or various diseases to afflict church members, or worse. Hateful certainly, but as hyperbole and histrionics, protected speech nonetheless.

Harsh words

Here is a sampling taken from a variety of websites within hours of the decision:

-“I cannot understand why some vigilante group(s) doesn’t simply solve the problem by, you know what, simply eradicating the Phelps family members. Every one of them, young and old.”

-“We also have a right to bear arms in the country. Maybe at their next protest we should be able to line up across the street from them and point our rifles at their heads.”

-“They bring signs. I say bring a baseball bat. Pain vs pain!!!!”

-“If I were on the jury when someone finally snaps and starts gunning these people down at one of their protests, I’d agree it was self-defense.”

-“Bash a Westboro protester….for Jesus.”

-“I hope everyone of those “Christians” get what’s coming to them. And when I mean get, I mean a bullet to the head.”

Protected speech

I doubt that any of those who posted these anonymous comments hesitated, before pushing the “send” button, over whether the First Amendment protected their comments, however hateful, vile or offensive.

Rather, they likely felt confident in seeking out a visible vantage point and using strong language to help them make their point to fellow citizens. The Phelps family members admitted that very tactic in arguing their case to the Supreme Court last year. “Westboro believes America is morally flawed; many Americans might feel the same about Westboro,” Chief Justice John G. Roberts Jr.’s written opinion states. “Westboro picketing is certainly hurtful and its contributions to public discourse may be negligible. But Westboro addressed matters of public import, on public property, in a peaceful manner … planned to coincide with Matthew Snyder’s funeral.”

The protest “did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.”

The First Amendment protects our right to express ourselves, and the depths of our opinions and emotions, in the most strident terms.

“Speech 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,” Roberts wrote.

“On the facts before us, 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.”

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn. 37212. Web: E-mail: