Cahiers Péguy


Snyder v. Phelps being argued today

Today the Supreme Court is hearing oral arguments in Snyder v. Phelps. Fred Phelps is the pastor of Westboro Baptist Church (WBC) in Kansas.  The Phelps family and the small WBC community have been notorious in recent years for their protests at the funerals of soldiers killed in Iraq and Afghanistan.  WBC, as most readers are probably familiar, has radically anti-homosexual views (as well as anti-Catholic).  WBC suggests that the death of American soldiers is just retribution for sin in America.  Signs they bear include slogans such as “God hates fags,” “Thank God for dead soldiers,” and “Priests rape boys.”

The father of a deceased soldier sued after WBC protested at his son’s funeral.  A district court ruled in the father’s favor and ordered substantial damages for his claims if intentional infliction of emotional distress (IIED) and invasion of privacy.  At issue before the Court:  Does the First Amendment protect WBC from liability under IIED?

It should be noted that both the IIED and invasion of privacy claims have little merit on their own.  IIED would probably fail because WBC made hyperbolic claims that would not likely be believed by most, and WBC made claims that cannot have their veracity verified by a Court.  Both would probably fail because the funeral was publically advertised, the father made news appearances, and the father didn’t even see or hear the protesters at the funeral… they were over 1,000 feet away from the church.

All of that, however, will be irrelevant if the Court validates WBC’s use of the free speech shield.  Very likely, the speech will be protected because it is public speech about a public issue.

Obviously, I am not very sympathetic to the cause or methods of WBC.  Yet the issue cannot be the merit of what WBC says or its popularity.  While they are characterized as right-wing, free speech groups from all over the political spectrum (including the ACLU) have risen to their defense.

A concern for me, which extends beyond the Voltairian “I may not agree with what you say, but I will defend to the death your right to say it,” strikes at where this case will lead if WBC’s speech is not protected.  No doubt, the content of WBC’s speech would have to weigh into a Court decision against WBC’s position.  If this happens, Christians would have to become wary of the future when we address issues such as homosexuality and the nature of marriage, for example.  As our speech becomes more and more unpopular, we should hesitate to limit the speech of others with unpopular viewpoints… such a precedent could be harmful in the future.

Though we won’t know for many a month, I expect the Court to rule in WBC’s favor.

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About Joseph Orrino

Joseph is a student at the University of St. Thomas School of Law in Minneapolis, Minnesota where he is Co-President of the St. Thomas More Society and an associate editor of the Journal of Law and Public Policy.
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  1. We have to deal with these nuts more often than most. I was stationed at Fort Riley, Kansas for 3 years and I am now stationed at Fort Leavenworth, Kansas. There is an honor guard which limits their exposure to the families of the fallen soldiers. Maybe a bubble zone can be established for War protesters similar to the one for Pro-Life prayer groups near abortion clinics.

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