A Question of Speech

The Westboro Baptist Church has been engaged in some pretty reprehensible behavior.

The fundamentalist Christian group based in Topeka, Kansas, has been protesting at military funerals across the country, saying that the soldiers’ deaths were punishment for homosexuality and for allowing gays to serve in the military.

It’s a pretty nasty message broadcast by what is a fairly cruel medium, but one that I has always assumed would be protected under the First Amendment.

A federal court, however, has found otherwise.

In an Oct. 31 ruling, a Baltimore jury found that the extremist group violated the privacy of the family of a soldier killed in Iraq by waving anti-gay signs during a protest at the funeral in 2006. The jury awarded nearly $11 million to Albert Snyder, father of Lance Cpl. Matthew Snyder who died in Anbar province in March 2006.

The decision was met by many liberal groups as a victory over extremism. The liberal blog Firedoglake, for instance, was ecstatic.

“Well, jump up and slap the mule,” blogger Trex wrote after the verdict was announced. “That’s the best news I’ve heard in ages. That means that Westboro Baptist will probably go bankrupt and Rev. Phelps and his congregation (which is mostly made up of his extended family) are going to have to ship their little inbred, home-schooled brats off to real schools because they’re all going to have to get real jobs, rather than travel the country intruding on the private grief of American families.”

Others have offered similar comments. But, while I despise the Westboro message and methods, I think the jury ruling raises serious concerns because of the conflict between the competing constitutional principles of privacy and speech.

Family members, like the Snyders, view the protests as an intrusion into their grief. I can understand their arguments: They are not public figures, after all, and they believe they have a reasonable right to be left alone.

But there is another issue on the table here, one that trumps the privacy concerns — the chilling effect that the decision may have on protest.

Legal experts interviewed by the Baltimore Sun after the verdict said that the judgment was inconsistent with the First Amendment.

“I think when speech is a matter of public concern it still has to be protected, even when by social standards it is extraordinarily rude and outrageous,” UCLA law professor Eugene Volokh told the paper.

Mark Graber, a University of Maryland law professor, questioned the impact that the monetary award – which included $8 million in punitive damages – could have.

“This was in a public space,” he told the paper. “While the actions are reprehensible, the First Amendment protects a lot that’s reprehensible.”

The impact, he said, could be to have a chilling effect on speech, which is the operative issue. That Westboro may face bankruptcy might not trouble some, but it is important to look beyond the vile Westboro group to the larger question of whether other groups could sustain such a judgment.

Imagine, for instance, that a jury were to find that a small antiwar group protesting at the home of the chairman of a weapons manufacturer had violated the chairman’s privacy. The jury, in this imaginary case, levels a huge monetary penalty, casting a pall over future protests by this group and others.

It’s the same principle with Westboro. What the church has to say is pretty vile and definitely out of the mainstream. But the First Amendment, if it is to remain relevant, must protect the vial and marginalized, and not just popular public opinion.

The First Amendment has to trump other considerations.

Hank Kalet is a poet and the managing editor of the South Brunswick Post and The Cranbury Press. E-mail See his blog, Channel Surfing, at

From The Progressive Populist, December 1, 2007

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