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Supreme Court Preserves First Amendment Protections of Offensive Speech


The Westboro Baptist Church is well known for their protests outside of funerals while carrying signs that suggest that America’s soldiers were dying in Afghanistan and Iraq because of the nation’s tolerance for homosexuality.  Several years ago, the Westboro Baptist Church protested at the funeral of Marine Lance Corporal Matthew Snyder, who had died in Iraq.

Lcpl. Snyder’s father consequently sued the Westboro Baptist Church for Intentional Infliction of Emotional Distress and won after jury trial in Federal District Court.  The Court of Appeals, however, overturned the jury verdict and held that Westboro’s First Amendment protection to protest on public property surpassed any of Snyder’s claims of being offended by their protest.

On March 2, 2011, the United States Supreme Court affirmed the Court of Appeal and held that “offensive speech” is still “speech” deserving of protection under the First Amendment.  Chief Justice Roberts who wrote for the majority emphasized America’s historical commitment to free speech provided protection for “even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court ruled in favor of the Westboro group stating that the speech involved matters of public concern and “the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military and scandals involving the Catholic clergy—are matters of public import.” Furthermore, the Court emphasized that the Westboro Baptist Church were compliant under the law in their protest. The group was picketing on a public street, which was 1,000 feet from the funeral, and the group protested quietly and non-violently.

In an 8-1 opinion, Justice Alito was the sole dissenter.  Citing Chapilinsky v. New Hampshire, Justice Alito advocated that the Westboro group’s speech in this case was so atrocious that it was not afforded any protection under the First Amendment. While Chapilinsky has never been overturned, the Supreme Court has issued numerous decisions since the 1942 case, and the case is no longer good precedent.

An interesting point to this opinion is Chief Justice Robert’s suggestion that the proper response to these distressing protests is not allowing juries to punish the unpopular speech, but rather to enact legislation to create “buffer zones” around funerals. As case law indicates, legislation for a “buffer zone” would need to pass a reasonableness test to be constitutional as time, place, and manner regulations on speech must be reasonable and not so overly broad as to amount to a bar on speech itself.

Thus, while the Westboro Baptist Church’s protest outside the funeral of a fallen Marine is repulsive and offensive, the Constitution does not permit barring the freedom of speech merely from the possibility that someone may be offended.

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