Phelps Funeral Protest Case Heads To Supreme Court Next Week, Presenting U.S. With Fundamental Questions

To some, the Westboro case is simply about homophobia run amok. From a more Constitutional level, however, it's about whether their hate should be protected by the First Amendment, a subject that has been reinvigorated by Terry Jones, the extremist pastor who planned to burn the Qur'an on 9/11.

Lawyer and former Time magazine writer Adam Cohen sums up the constitutional dilemma quite well:

Even for the most committed civil libertarian, it is hard to get excited about defending a hate-spewing minimob that targets the funeral of a dead soldier or signs saying, "God Hates the USA. Thank God for 9/11." Still, it is important for the court to rule that this kind of expression lies within the First Amendment. We defend it not because these ideas are particularly worthy of being protected, but because all ideas, even the most loathsome, are.

The Supreme Court ruled 8-1 last year that animal cruelty videos are protected forms of speech, a ruling that may provide insight into how they'll view the Phelps case. We should all be asking ourselves, then, whether we want to throw our support behind the First Amendment, or whether we think Constitutional restrictions are worth sending a message: hate speech has no place in the United States.

Snyder and his lawyers, who have the "friend of court" support from a disparate group of politicians, including Democrat Barbara Boxer and typically anti-gay Republican David Vitter, are well aware of the Constitutional handicaps they face, which explains why they're framing their argument as an invasion of privacy and as an issue of another Constitutional guarantee, Freedom of Assembly.

Which way do you think the Court should rule, reader? Are free speech rights worth curtailing to end the Westboro Baptist Church's' reign of terror?

Here's the
PDF of the Snyder's SCOTUS brief.


  1. Disgusted American says

    how is it that THESE cases get to the supreme Crt before cases that involve EQUALITY? ..or the Prop 8 case? why do they have to wait a year or 3? Equality should wait for no-one.

  2. matt says

    I am stunned that the SCOTUS has even accepted this case. Although Phelps and his supporters use vile speech, it is clearly protected speech, and for the Court to rule otherwise would be a serious undermining of the First Amendment.

  3. Luke says

    While I find WBC completely abhorrent and their message despicable, I’d have to say it’s free speech and – though this makes the bile rise in my throat – should be allowed. I feel like if the gays had a group this militant the same conclusion would be reached by conservatives. Our First Amendment rights are so basic and so well-written that to violate those, even to ban a group such as Westboro, is almost sacrilege. Besides, their presence makes even Fox News defend the gays, or at least attack a homophobic group. They’re sort of gay icons, pushing people to act in favor of tolerance across the nation, and the protestors themselves are sort of making manifest certain litotes, in that by expressing the negative of a contrary they’re stating a positive (i.e., “We are against anti-gay churches” meaning “We are pro-gay.”). Having this kind of rampant opposition only shows how far we’ve come and how far we must go in the same feral swipe. I’m VERY interested to see how this case turns out.

  4. Acronym Jim says

    The first step towards losing one’s own right to free speech is restricting the free speech rights of others, no matter how idiotic their message.

    Personally, I think the WBC may be Poe. The extreme views espoused by the group shines a bright spotlight on the anti-gay bigotry from the religious right. The WBC merely publicly states in the bluntest of terms what other religious organizations teach within the safety of the four (or more) walls of their own churches.

    Like the WBC, Falwell was and Robertson is a big fan of blaming “Teh Ghey” for natural and man made disasters. Most reasonable people, religious and otherwise, look at the Phelps clan with revulsion. Perhaps many are now realizing that their own clergy are making similar statements using more “biblically correct” language. Hence, weirdly enough, I think the WBC is actually helping the gay rights movement.

  5. Ted says

    It is reasonable to assume that the “captive audience” doctrine as described by Snyder’s attorneys’ brief is applicable in the case of a private individual’s funeral service. And accordingly protection of the privacy of the funeral attendees is greater than protection of the free speech rights of the WBC.

  6. tropos says

    Hey Andrew,
    Last couple of days I find myself reading the posts thoroughly – your writing is so thoughtful, clear and well-versed. Kudos!

    PS: Of course, it does not hurt that you are so easy on the eyes. Care to grab coffee sometime? 😉

  7. mad1026 says

    Just because Fred Phelps’ children marry each other and their offspring populate his church doesn’t mean they get to spew hatred at a PRIVATE Military funeral for a fallen servicemember! Mr Snyder has every right to sue and prevail in this case. WBC has the money to travel all over the country preaching the same hatred that has promoted bullying in schools leading to the suicides of three young people recently. And WBC gets tax breaks for that?

  8. jtaskw says

    This case is not about free speech, but about civil redress for harm inflicted.
    No one can stand on the sidewalk in front of their neighbor’s house with a bullhorn and spout vile things about them, their family members, etc. without facing possible repercussions. The same principle applies here.
    Yes, WBC is free to exercise their right to free speech. It does not absolve them from being responsible for what is said when they do so.

  9. Mana says

    They have the right to free speech. They do NOT have the right to harass or harm others, particularly those made vulnerable by the death of a family member in service to the nation. If the government won’t protect a deceased veteran’s family from hate speech, it is a sad day indeed.

    When is speech harmful, when is it harassment? When does saying *where* you can exercise free speech become an infringement on the right itself? I’m sure I’m not a lawyer or a judge, so I couldn’t say. But I’d like to think that this qualifies.

    Phelps has the same right to express ideas as the rest of us. But I’d like to think that if I tried to protest at his funeral, the government would protect his family from cruel speech or harassment.

  10. oniondick says

    im surprised the Westboro Babtist Church hasnt been taken out yet. For the amount of shit they hate, there are 239057238904572389 more people that hate them! go to hell haters. god these people make me sick.

  11. ryan says

    The amicus brief that was sent to the court is asking the SCOTUS to draw a narrow bright line ruling to observe that funerals are a “unique setting” that should be protected because it is a private and not public forum.

    You can find the brief here:

    Though one may tout that a ruling against the Phelps will end free speech, if the holding by the court is narrow enough, it will virtually have no effect on the rest of the population because no other group does this activity in a private, individually targeted forum.

  12. jexer says

    Freedom of speech does not allow one to stand up in a crowded theater and yell “FIRE!!!” for a reason.

    I, personally, want the Phelps clan made more visible. They are so loathsome and unsympathetic that they make homophobes LOOK LIKE IDIOTS. There will always be conflict and polarization… I’d rather have them and their policy of non-violent protest at the opposite extreme than a group that prefers secrecy and violence.

    Don’t silence them. Make them pay for the harm their excercise of free speech inflicts.

  13. anon says

    You can’t chill free speech with threats of civil action, as in heckler’s vetoes, etc. Clearly, the AsG here were so limited in the ability to frame their case that they had to try to carve out a “funeral” exception to standard case law. Good luck with that one. The SC will probably redirect the lower court to confine the matter to elements of pure harassment as precedent allows. Otherwise, think of all the political protests that get quite nasty that might go the way of the dodo just because someone got upset.

  14. Big Gay Jason says

    Even 1st amendment protected speech can be limited for time and place. The cult IMO crosses the line from protected speech to disorderly conduct. The use of fighting words, obscenities and harassment cross the line and should be regulated.

    Topeka, Kansas resident

  15. kansastock says

    Big Gay;

    Certainly understand your discust. I just have to hear about them, but you have to smell them, too. So sorry. This will in time improve, as Phred will soon be worm dessert.

    Otherwise disagree, freedom of speech can’t be regulated… as in who’s the regulator?

  16. says

    What Phelps and his ilk need is societal pressure to quit their offensive ways (media should ignore them, the offended should drown them out, their neighbors should shun them).
    What we don’t need is to have our liberties constitutionally curtailed.

  17. says

    The Phelpsoi have an indisputable right to be hateful and speak hateful things. It seems to me, however, that the Court should also affirm, as it frequently does in First Amendment cases, that time/place/manner restrictions are allowable–and a funeral should certainly be a space/time as protected as the haters’ speech.

  18. Randy says

    The first amendment clearly states that Congress shall pass no law abridging the right to free speech or press.

    Of course, that never stopped the Supreme Court from upholding laws against obscenity.

    The first amendment is a nice bedtime story we tell children, nothing more. There never was free speech, so I wouldn’t worry too much about limiting theirs.

  19. James says

    I’m not Canadian, but the way I understand it, in Canada free speech is protected but at the same time that speech cannot denigrate a particular group of people. I would be interested in hearing if any Canadian readers can explain the difference.

  20. Diz says


    Coming out of a lurk to say that yes, up here we have laws to protect against hate speech. We have for years and obviously we haven’t burned down as a nation, nor is there some special gestapo out there restricting everyone’s views.

    Hell, Fred Phelps won’t come to Canada because of these laws. I, for one, am grateful.

  21. David G. says

    RE: Canada’s free speech laws, this from Wikipedia:

    Under section 319, it is illegal to publicly incite hatred against people based on their colour, race, religion, ethnic origin, and sexual orientation, except where the statements made are true or are made in good faith. The prohibition against inciting hatred based on sexual orientation was added to the section in 2004 with the passage of Bill C-250.

  22. says

    “WASHINGTON — The Supreme Court is getting involved in the legal fight over the anti-gay protesters who show up at military funerals with inflammatory messages like “”Thank God for dead soldiers.””

    The court agreed Monday to consider whether the protesters’ message, no matter how provocative and upsetting, is protected by the First Amendment. Members of a Kansas-based church have picketed military funerals to spread their belief that U.S. deaths in Afghanistan and Iraq are punishment for the nation’s tolerance of homosexuality.

    The justices will hear an appeal from the father of a Marine killed in Iraq to reinstate a $5 million verdict against the protesters, after they picketed outside his son’s funeral in Maryland.

    A jury in Baltimore awarded Albert Snyder damages for emotional distress and invasion of privacy, but a federal appeals court threw out the verdict. The 4th U.S. Circuit Court of Appeals said the signs contained “”imaginative and hyperbolic rhetoric”” protected by the First Amendment.”

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