By K. Hollyn Hollman, BJC General Counsel
Westboro Baptist Church — the tiny but seemingly ubiquitous church group founded by Fred Phelps of Topeka, Kan., and consisting mostly of his family members — is one of the most notorious religious groups in America. It seems almost everyone, regardless of religion, politics or geography, has encountered Phelps or his family members and their “God Hates Fags” and “God Hates America” signs. The church’s targets for protest seem chosen randomly. They admit, however, that a primary criterion is potential for media coverage. The higher profile or more emotionally charged an event, such as a military funeral, the more likely they will appear, carrying a message that the United States must be punished for tolerating homosexuality.
Now adding to the church’s distinction is a U.S. Supreme Court case bearing their leader’s name and upholding their constitutional rights despite the harm caused to a grieving military family.
In Snyder v. Phelps, the Court held by an 8 to 1 margin that the First Amendment’s Free Speech Clause protected Phelps from liability for the intentional infliction of emotional distress caused by picketing near a soldier’s funeral service in Westminster, Md. A jury in Maryland had awarded millions of dollars in damages to the Synder family, whose son was killed in the Iraq war. Phelps and his children and grandchildren held a protest on public land about 1,000 feet from the church where the funeral was held. The U.S. Circuit Court of Appeals overturned that verdict finding that the Free Speech Clause protected the demonstrators’ actions. The Supreme Court affirmed that decision.
Since the case was decided, we’ve received a number of inquiries, centered primarily on two concerns: the scope of the Court ruling and Baptist fears of association with Westboro.
The case makes no specific contribution to religious liberty law. The facts of the case, recited in the opinion, state that the protesters held signs, sang hymns and recited Bible verses. The decision does not otherwise mention religion. The Court’s decision rests firmly on Free Speech principles that protect speech on public issues (including speech motivated by religion) because such speech is “more than self-expression; it is the essence of self-government.”
Taking into account all circumstances of the speech — what, where and how it was said — the Court found that the speech deserved protection because it relates to broad issues about our country’s political and moral conduct rather than purely private concerns. Rejecting Snyder’s claim that the speech’s connection with his son’s funeral made it a private concern, the Court emphasized that the Phelps message was “displayed on public land next to a public street,” the kind of space that occupies a special position for First Amendment protection. The Court noted, however, that even protected speech may be subject to reasonable time and place restrictions. The Court said that in this case the church members complied with police guidance and were not unruly or violent. As the Court stated, “Simply put, the church members had the right to be where they were.”
It seems likely the result would be different if the protesters had physically interfered with the funeral or broken any laws that regulated where they could picket, such as the many recently enacted state laws that restrict picketing near funerals (though the constitutionality of those laws has yet to be tested).
In addition to concerns about the boundaries between Free Speech and the privacy of families at funerals, many Baptists have been concerned about the damaging public witness of Westboro. Some, including those who have also been picketed by Westboro, have long issued “disclaimers” in public statements to avoid any association.
In addition to explaining the congregational and autonomous nature of Baptist churches, some have found opportunities to use publicity generated by Westboro to demonstrate another face of churches. When Westboro picketed a funeral in Raleigh, N.C., as in many cities, a number of counter-protesters showed up, holding signs about God’s love. The media attention also noted a ministry of nearby First Baptist Church on Salisbury Street that was working that same day to provide toys for children of families who could not afford them for the holidays. The coincidental timing offered a striking contrast and demonstrated one important aspect of the legal principles at stake in the Supreme Court case. The same free speech rights that protect Westboro protect those who have a far more generous view of God and a far different view of what we are called to do.
