Should Harassing the Families of Dead Soldiers Be Protected Free Speech?

"Thank God for Dead Soldiers."

"God Hates Fags."

"Thank God for 9/11."

Those are just a few of the signs that Fred Phelps and the members of his Kansas Westboro Baptist Church held up high during their protest at the funeral of Marine Lance Corporal Matthew Snyder in 2006. Snyder gave his life for our country in Iraq.

He was only 20 years old when he died.

Offensive speech about Snyder was also posted on the church's website (which has the url not of the church's name, but of "god hates fags") proclaiming that it was the fault of Snyder's parents that he died in Iraq because they'd divorced and their son was a target for God's punishment because of that.

So the question for the Supreme Court is whether those protests and web content are protected free speech or whether it's action aimed toward private citizens that doesn't deserve Constitutional protection.


Snyder's family says he wasn't gay. Phelps has said his church protests military funerals, whether the service people were gay or not, because they believe the military promotes homosexuality in the service. Corporal Snyder's family sued the Westboro Baptist Church for the conduct and won an $11 million dollar judgment against it for intentional infliction of emotional distress. An appeals court reversed that, hence the case landing in the lap of the Supreme Court.

To say this one is a tough legal call is an understatement. It's similar to the idea that most people don't want to see the American flag burned but, like it or not, it's conduct that amounts to constitutionally protected free speech. Will the justices decide the same thing in this case -- that even the most horrible and distasteful speech at a fallen soldier's funeral is protected by the First Amendment?

It's no secret that Kansas pastor Fred Phelps and his church are engaged in these types of protests. They have been for years. The BBC made a movie called The Most Hated Family in America that shows in specific detail the church's conduct that most of us would call hate speech.

In deciding whether the speech or conduct deserves the protection of the Constitution, does it matter whether the protesters were speaking out against the war itself -- which is conduct by the government -- or that the protest was supposedly about the military allowing gays to serve in uniform? And does it matter that the church chose the soldier's private family funeral to mount its protest?

Most of us can probably agree that the conduct by the church members was distasteful and disrespectful to the family, no matter what we think about the underlying issues. Even Bill O'Reilly has come to the defense of the Snyder family.

According to reporters who were in the courtroom for the oral arguments, the Supreme Court justices struggled to find some balance between established First Amendment rights and their apparent distaste for what the Westboro Church did at Corporal Snyder's funeral. Those justices are an inscrutable bunch, though. And it's never wise to predict what they'll do based on any question that gets asked while they're sitting on the bench.

Sometimes I think I'd like to be a Supreme Court justice. But not today. No matter what they decide in this case, it's going to be fodder for political infighting for years to come.


Read More >