If the cliched legal admonition that hard cases make bad law is true, then no matter how the U.S. Supreme Court decides Snyder vs. Phelps, the result will be wretched.
The Phelps in this instance are Fred Phelps and two of his daughters, both members of the Topeka, Kan.-based Westboro Baptist Church their father founded and still directs. It is a tiny, vilely cultish congregation consisting almost entirely of the elder Phelps' extended family and espousing virulent hatred of gays and lesbians, Catholics, Jews, the U.S. government … and Swedes. In recent years, Westboro members have gone about the country picketing the funerals of service men and women killed in Iraq and Afghanistan. They hold up signs proclaiming that God hates homosexuals and, because the military endorses "don't ask, don't tell," God punishes U.S. troops.
The other litigant is Albert Snyder, whose son, Matthew — a Marine lance corporal — was killed in Iraq. When his family buried him in Maryland, Phelps and his two daughters traveled from Kansas to picket the funeral, holding up signs that read "God hates you" and "You're going to hell," as well as anti-gay and anti-Catholic slogans. (The Snyder family is Roman Catholic.) Later, on one of its many websites, the Westboro church posted an essay that assailed Snyder and his wife for raising their son a Catholic, alleging they had "taught Matthew to defy his creator."
Albert Snyder filed a federal lawsuit charging that he and his family had been defamed, had suffered invasion of privacy and endured emotional distress. Before trial, the defamation issue was thrown out on the grounds that the Phelpses' noxious allegations were protected religious speech, but the defendants were found to have invaded the Snyders' privacy and to have inflicted distress. The jury awarded the family $10.9 million in damages, subsequently reduced by half. Two years ago, the U.S. 4th Circuit Court of Appeals overturned the verdict, ruling that both the Phelpses' speech and their picketing were protected by the 1st Amendment.
Snyder appealed to the U.S. Supreme Court, which will hear arguments in the case Wednesday.
The court's willingness to accept Snyder's appeal alarmed 1st Amendment advocates, who fear the conservative majority may find that the Snyders' right to privacy and to be shielded from hate speech trumps the Phelpses' right to free expression. Others worry that a decision for the Snyders might impose burdensome new restrictions on Internet bloggers, who frequently direct comments at people who are not public figures.
As a consequence, the Reporters Committee for Freedom of the Press and 21 news organizations — including the New York Times, the Wall Street Journal and this paper's parent corporation — have joined in a friend-of-the-court brief supporting Westboro.
"Most reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful," the news organizations argue. "But to silence a fringe messenger because of the distastefulness of the message is antithetical to the 1st Amendment's most basic precepts.... This case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant. However, the particular facts of this case should not be used to fashion a 1st Amendment exemption for offensive speech. No less a principle is at stake than the central tenet of the 1st Amendment that the government must remain neutral in the marketplace of ideas."
It's the sound argument but a bloodless one — and to be morally and socially responsible, as well as constitutionally correct, it requires that those advancing it recognize that although government must be neutral, the news media must not be indifferent to the implications of the Snyder family's claims. Do we really want a society that makes no private place for grief? Albert Snyder and his wife are private people dragged into this for no reason other than that their son's sacrifice in the execution of a public duty made them the target of lunatics.
If we're going to argue that they must endure this for the common good, then the news media ought to do the decent and the rational thing and ignore Westboro's future protests. As the Anti-Defamation League pointed out in its analysis of this hate church, its tiny congregation seems to live for little but publicity.
If Albert Snyder and his family must forbear to protect the 1st Amendment, the American media owes it to them to restrain their vulgar impulse toward the bizarre and the sensational.